In Carter v. Antwi, the infant plaintiff was a passenger in a vehicle owned and operated by Merlene and Fred Carter, respectively.  The infant plaintiff allegedly sustained injuries when the vehicle he was in collided with a vehicle that Diana Antwi owned and Jason Sandy operated.  In addition to Antwi and Sandy, Fred Carter was named as a defendant in the resulting lawsuit.

The case eventually went to trial during which Sandy gave direct testimony, but failed to return to court for cross-examination.  Consequently, the court struck Sandy’s testimony, but permitted the parties to read from his deposition transcript.  A key issue arose in that the certified police accident report documented Sandy telling the responding police officer that he did not know the light was red and that he had lost control of his vehicle.  However, Sandy’s deposition testimony contradicted the report.

Prior to closing arguments, Carter settled the case with Antwi and Sandy, both of whom were then absent for the remainder of the trial.  Nevertheless, for purposes of apportionment, the question of Sandy’s negligence was submitted to the jury.   Prior to summations, defense counsel asked the trial judge about addressing Sandy’s stricken testimony and his absence from the balance of the trial.  The judge ruled that he would remind the jury f Sandy’s stricken testimony and that the testimony was stricken because all attorneys did not get to question him.  The judge further admonished the jury not to speculate as to why counsel for Sandy and Antwi were not present for the remainder of the trial.

Despite the judge’s ruling, defense counsel addressed Sandy’s stricken testimony and the absence of both Sandy and his counsel from the courtroom.  Counsel referenced the “empty chairs” and further stated that the police report that reflected Sandy’s contradictory statements was the reason Sandy was no longer in the case.  The judge interrupted summations and admonished defense counsel outside of the jury’s presence.  The plaintiff’s attorney moved for a mistrial due to the prejudicial nature of defense counsel’s summations.  The judge reserved decision and gave a curative instruction regarding the references to Sandy during summations.  The jury ultimately found that Carter was not negligent and plaintiff renewed the motion for a mistrial.

In granting the mistrial, the court admonished counsel for directing the jury to consider a matter that was expressly not to be considered – Sandy and his attorney’s absence from the courtroom – and suggesting that their absence was due to Sandy’s admission of fault in the police accident report.  Despite the curative instruction, the court noted that counsel had implied that a settlement with Sandy was reached due to his admission in the accident report and that this was the reason Sandy and his counsel were not present in the courtroom.  The court ruled that the comments were sufficiently prejudicial to the plaintiffs and that a new trial was warranted.

This decision serves as a warning that there is a fine line between being a zealous advocate for your client and ignoring the court’s express instructions.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Y. Brown at .