Trial lawyers don’t like to lose their cases. Some try to charm the judge and jury while others prefer a full frontal attack, leaving adverse witnesses bowed and broken after completing a vicious cross examination. Summations can become high theatre, complete with rhetorical flourishes that pull at the heartstrings of the jurors or challenge them to “punish” a wealthy and impersonal corporation. But the day of reckoning arrives when the jury verdict must be defended on appeal.
Such is the case of Smolinksi v. Smolinski and Ford Motor Credit Company that arose out of a single car accident in which one brother escaped with barely a scratch while the other sustained catastrophic injuries that rendered him a quadriplegic. By 2008, the Smolinski case already had a long and tortuous history: two prior jury trials had ended in mistrials over the issue of which brother was driving the vehicle. If the injured plaintiff was driving, he had no one to sue. If his brother was driving, then Ford would be vicariously liable under the then existing Vehicle and Traffic Law as the owner and lessor of the vehicle.
The third trial was bifurcated with a single question on the issue of liability: which brother was driving the vehicle at the time of the accident? The trial was contentious as was plaintiff’s summation. During her closing argument, she suggested that: (1) the Ford expert testified falsely for money; (2) Ford conspired to cover up critical facts; and (3) Ford had great resources at its disposal as a large corporation. The trial judge compounded these errors by excluding critical evidence that suggested that plaintiff –and not his defendant brother—was driving at the time of the accident. The jury found in favor of plaintiff and, according to reputable news accounts, apparently awarded him about $44,000,000 in compensation.
On appeal, the Appellate Division, Fourth Department vacated the liability verdict because of “the misconduct of plaintiff’s counsel during summation….” and other evidentiary errors. The court was unappreciative of the litigation’s “tit for tat” and chastised defense counsel as well for over zealous conduct.
The moral of this case is clear. The brilliance of a winning verdict eventually wanes after an appellate court vacates a favorable verdict and directs the parties to do it again. It is the trial attorney’s job to come close to but avoid the line that separates passionate advocacy from attorney misconduct.
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