New Trial Ordered Due to Attorney Misconduct

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

In an earlier podcast, we discussed how an attorney and his client were penalized for destroying social media information. The penalty issued by the court cut a jury award in half.

Misconduct by counsel can occur at different stages of a proceeding. It can come before trial, during the trial, or after trial.

One of the rules for trials is that if misconduct occurs during a trial, an objection needs to be raised immediately.

A court can rule that the objection was waived if an objection could have been raised, but it was not raised.

Objecting during the closing argument of opposing counsel is a high-risk proposition.

Suppose you object, and the objection is overruled and brushed off by the court. In that case, it encourages the jury to accept the argument they otherwise might have ignored.

Suppose you let the objectional argument slide and hope the jury will ignore it. In that case, you might be barred from raising the issue on appeal, as the appellate court will claim that you waived the issue by failing to object.

In a series of cases, a defense counsel, who we will not name, made the same objectionable closing argument.

What did he do? He encouraged the jurors to look outside the law and the relevant facts to decide the cases. Such an argument is improper.

In the case of this particular lawyer, the court found the argument amounted to misconduct.

But what is the remedy in such a case?

The typical remedy for such misconduct would be to order a new trial.

If the Court does not grant a request for an order for a new trial, then the party engaged in the misconduct profits from their misconduct.

But how should a trial court evaluate a new trial request based on attorney misconduct?

Here is how the courts are to decide the issue.

When a party successfully objects to the misconduct, the court may grant a subsequent motion for a new trial if the moving party demonstrates that the misconduct’s harmful effect could not be removed through a sustained objection and admonishment to the jury to disregard the objectionable material.

When a party chooses not to object to the misconduct, the trial court may grant a motion for a new trial only if the misconduct amounted to plain error so that absent the misconduct, the verdict would have been different.

No matter how a trial court decides on a motion for a new trial based on attorney misconduct, the trial court must make express factual findings stating the specific reasons for their decision.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”