Summary
In Yost, the defendant's counsel made improper questions, comments, and arguments to the effect that the plaintiff's counsel was motivated by greed to file an unnecessary lawsuit over a trivial injury.
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Docket No. 306774.
2013-06-18
YOST v. FALKER.
Patrick A. Rooney, Clinton Township, and Richard E. Shaw, Detroit, for plaintiff. Caravas & Manikas, Clinton Township, (by Gary W. Caravas) for defendant.
Patrick A. Rooney, Clinton Township, and Richard E. Shaw, Detroit, for plaintiff. Caravas & Manikas, Clinton Township, (by Gary W. Caravas) for defendant.
Before: SHAPIRO, P.J., and SERVITTO and RONAYNE KRAUSE, JJ.
PER CURIAM.
In this third-party automobile negligence case, the jury concluded that plaintiff's scar adjacent to her eye did not rise to the level of a permanent, serious disfigurement, and so judgment for defendant was entered. Plaintiff moved for a new trial, asserting that during trial defense counsel engaged in repeated misconduct that deprived plaintiff of a fair trial. We agree that defense counsel engaged in misconductintended to divert the jury from the merits of the case. We affirm, however, because a note sent by the jury to the court during deliberations unequivocally demonstrated that these efforts had not succeeded and that the jury was not prejudiced against the plaintiff's claim.
During trial, defense counsel made several improper arguments and inquiries about plaintiff's decision to seek counsel and the decision to file suit. In his opening statement, defense counsel argued that plaintiff's claim should be rejected because her lawsuit was filed less than one month after the accident. He stated: “On October 26, '09, she starts a lawsuit. What? Twenty-four days after this accident she's already filing a lawsuit....”
This theme was continued during proofs. The first witness called by the plaintiff was her husband. At the outset of cross-examination, defense counsel asked a series of questions concerning when the plaintiff first consulted an attorney, whether her husband attended the first meeting with the attorney, whether the attorney came to their home, how many times they met with the attorney, and the date the complaint was filed in relation to the accident. These questions, which made up the bulk of the entire cross-examination, were clearly intended to improperly suggest, like defendant's opening statement, that prompt consultation with counsel after an automobile accident was somehow improper and that the jury should find for defendant to deter the filing of lawsuits.
Defense counsel's cross-examination of plaintiff similarly focused on the timing of her consultation with and retention of counsel. Plaintiff was asked when she first consulted an attorney, how she selected the attorney, whether her husband was with her when she first met with the attorney, why her attorney filed suit, and to confirm the date the lawsuit was filed in relation to those meetings.
This strategy reached its culmination after the parties rested. In closing argument, defense counsel told the jury that plaintiff's claim should be rejected because too many people are seeing lawyers and filing too many lawsuits:
Two weeks [after the crash] and she's in the lawyer's office. And you say to yourself ... two weeks with a scar like that to be going in to file a lawsuit.
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In steps the lawyer. I can sue.... I'm going to sue. And he wastes no time. He drafts it—we know that at least by 10–23 [2009] he drafts it, and it's filed with the court on the 26th....
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... And we've seen a lot of that in TV commercials, and every time you turn around, I'll sue, I'll sue. [Emphasis added].
Defendant's attorney repeated this assertion again later in his closing argument and went so far as to claim that the suit and the amount of compensation sought was prompted by plaintiff's counsel's greed “[b]ecause after all is said and done, [plaintiff's counsel] [does] well on it. If he does well, he does well for the case.”
It is well settled that the cumulative effect of an attorney's misconduct at trial may require retrial when the misconduct sought “to prejudice the jury and divert the jurors' attention from the merits of the case.” Kern v. St. Luke's Hosp. Ass'n of Saginaw, 404 Mich. 339, 354, 273 N.W.2d 75 (1978); see also Badalamenti v. William Beaumont Hosp.–Troy, 237 Mich.App. 278, 289, 602 N.W.2d 854 (1999); Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 330 N.W.2d 638 (1982); Shemman v. American Steamship Co., 89 Mich.App. 656, 666, 280 N.W.2d 852 (1979); Wayne Co. Bd. of Rd. Comm'rs v. GLS LeasCo, Inc., 394 Mich. 126, 138, 229 N.W.2d 797 (1975) (“ ‘ [O]ne cannot read the record without being impressed’ that [counsel] refused to proceed solely on the merits.”) (citation omitted). After a review of the entire record, we conclude that defense counsel did seek “to prejudice the jury and divert the jurors' attention from the merits of the case.” Kern, 404 Mich. at 354, 273 N.W.2d 75.
Typically, “[i]t cannot be demonstrated what effect any particular statement has on a jury,” and for this reason the nonoffending party is not required to “demonstrate affirmatively” that the statements had a prejudicial effect. GLS LeasCo, 394 Mich. at 139, 229 N.W.2d 797. However, this case is unusual in that defendant is able to affirmatively demonstrate that the statements, though intended to prejudice the jury, did not have that effect. During deliberations, the jury sent a note to the trial court asking, “If we, as a jury, choose no for question number one [whether plaintiff suffered a permanent, serious disfigurement], can we still compensate her?” Reviewing this question in the context of the entire record makes it clear that the jury did not conclude that plaintiff was unworthy of compensation or that it should deny compensation to discourage lawsuits. In light of the jury's inquiry, we are fully convinced that the jurors concluded on the basis of the actual evidence, including their own view of plaintiff's scar throughout the trial, that plaintiff's scar did not constitute a permanent, serious disfigurement.
Defense counsel's comments were improper. In the absence of the jury's written question that constituted compelling evidence of a lack of prejudice, reversal and a new trial would have been required. However, given the jury's inquiry, we affirm.