Egregious attorney misconduct at trial leads to reversal on appeal

When I was a young lawyer, a mentor told me to practice as if the rules will always be strictly enforced against me and my client, yet never enforced against the other side. I always took that as a bit of rhetorical flourish meant to emphasize careful compliance with the rules and to be ready for anything from the other side, but my mentor’s admonition appears to have been manifest in the trial leading up to Martinez v. State of California Dept. of Transportation, case no. G048375 (4th Dist., June 12, 2015, certified for publication July 7, 2015). The misconduct paid off in the short term by getting a defense verdict, and it even survived a mid-trial motion for mistrial and a new trial motion, but it was a short-lived victory, as the Court of Appeal reverses.

Here’s how the Court of Appeal summed it up:

Generally, what happened is this: Defendant’s attorney Karen Bilotti would ask a question in clear violation of the trial court’s in limine orders [i.e., orders precluding certain evidence at trial]. The question would usually have the effect of gratuitously besmirching the character of plaintiff Donn Martinez. An objection from Martinez’s counsel would follow. The trial court would sustain the objection. Bilotti would then ask the same question again. The trial court would sustain the objection again. And the same thing would happen again. And again. And again. And again.

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While Judge Di Cesare showed the patience of Job – usually a virtue in a judge – that patience here had the effect of favoring one side over the other. He allowed Bilotti to emphasize irrelevant and inflammatory points concerning the plaintiff’s character so often that he effectively gave CalTrans an unfair advantage. Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal.

The court even gives a tally of the misconduct: eight improper statements during opening argument, ten references during cross reference of plaintiff to the off-limits subject of his prior termination from a school district, another 13 forbidden references to the termination — 12 of them after sustained objections! — during cross-examination of plaintiff’s wife, and five improper statements during closing arguments. Counsel also sprinkled Nazi references liberally because the plaintiff’s motorcycle bore a logo for Set Free ministries — a religious organization that ordained plaintiff after a year of bible study — that included a Nazi-style helmet.

The court also summarizes the misconduct by type and, noting that appellant claimed there was even more misconduct, writes: “But we see no reason to go further. Suffice it to say we found enough to establish attorney misconduct at least five pages ago.”

Of course, the misconduct alone is not enough for reversal. Before the court can reverse, it must find that the misconduct was prejudicial. That’s not hard for the court to do in this case. See the case for more dateline the nature of the misconduct and why it was prejudicial, and the trial court abused its discretion in denying a motion for new trial.

The court’s characterization of the trial judge as “patient” has to be the understatement of the year. The trial judge denied a mid-trial motion for mistrial, and even after the attorney continued in her misconduct after that, the trial judge refused to grant a new trial motion after the defense verdict.

The reversal on appeal is not the only adverse consequence of the misconduct. The Court of Appeal also orders the clerk to send a copy of the opinion to the State Bar, “notifying it the reversal of the judgment is based solely on attorney misconduct.”

Reference: Alex Spiro.