Trial Tips - The Difficult Judge by Frank Scahill

"A trial justice plays a vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial," but that "power is one that should be exercised sparingly." Porcelli v. N. Westchester Hosp. Ctr., 110 A.D.3d 703, 706, 977 N.Y.S.2d 32, 35 (2013).

Dealing with difficult Judges is a basic element of life for a trial lawyer. How you approach a bench hostile to your case, your witnesses or you, says a lot about your effectiveness as a trial lawyer. Some lawyers prefer a full frontal assault. Regardless of the casualties, they will fight the Court on every ruling. I find this is rarely effective. Rather, I suggest a firm and respectful approach. You may lose the ruling on a point of law, but you are showing the jury how respectful you are to the Court, regardless of the behavior of the Judge. You will also be surprised how a jury takes this all in. A jury likes the underdog. The more the Judge beats up on your adversary, the less likely you are to prevail. If the attorney is a person to be admired by the jury, the jury will feel sorry for her or him, and in deliberations, factor that into their decision making.

By all means do everything in your power to make a record. The Appellate Division can smoke out an overzealous trial Judge and frequently order a new trial.

Take for example Canty v. McLoughlin, 16 A.D.3d 449, 450, 791 N.Y.S.2d 625, 625 (2005), where Judge Hart from Queens County refused our request to continue the trial to the following morning, so that we could call a key witness for the defense. Our trip to 45 Monroe Place resulted in this decision: "Although an application for an adjournment is addressed to the sound discretion of the trial court (see Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447), the Supreme Court improvidently exercised its discretion in denying the application of the defendant for a brief adjournment. The plaintiff rested at 3:30 P.M. on the first day of trial and the defendant requested an adjournment until 9:30 the next morning to present a witness. The defendant's proffered evidence was material, the need for the adjournment did not result from the defendant's failure to exercise due diligence and, despite the history of this case, there was no evidence that the adjournment was made for the purpose of delay. Thus, the adjournment should have been granted and the failure to do so requires a new trial (see Azapinto v. Jamaica Hosp., 297 A.D.2d 301, 746 N.Y.S.2d 260; Matter of Shepard, 286 A.D.2d 336, 337, 728 N.Y.S.2d 784; Wai Ming Ng v. Tow, 260 A.D.2d 574, 574, 688 N.Y.S.2d 647)."

See also DeCrescenzo v. Gonzalez, 46 A.D.3d 607, 847 N.Y.S.2d 236 (2007) on a trial before Judge Bernadette Bayne in Kings County. Here, the Appellate Court decision included this critique of the Trial Court: "Throughout this lengthy and acrimonious trial, the Trial Justice demonstrated a propensity to admonish the defense counsel at a substantially more frequent rate than she did the plaintiffs' counsel, often admonishing the defense counsel for actions about which she failed to comment when committed by the plaintiffs' counsel. She gave the plaintiffs' counsel significantly more leeway in cross-examining witnesses and in making extraneous comments than she gave the defense counsel. During the trial, and in front of the jury, she gave a gift to the infant plaintiff. Later, also during trial, she gave each jury member a gift when the court recessed for a holiday break. Under the circumstances, the defendants were denied a fair trial by virtue of the cumulative effect of the improper conduct of the trial court, and as a result, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner."

Perhaps the most bizarre record is a case before Judge Smith from Westchester County, Porcelli v. N. Westchester Hosp. Ctr., 110 A.D.3d 703, 706-07, 977 N.Y.S.2d 32, 36-37 (2013). "Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff's counsel, at all phases of the trial, and often times in the presence of the jury, unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff's counsel, and gave the plaintiff's counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants' counsel. By way of example, at one point, the trial justice, after precluding the plaintiff's counsel from cross-examining a witness, advised the plaintiff's counsel, in front of the jury, that she was aware of the rules of evidence regarding when an attorney and client can speak during a break, and would explain them to the plaintiff's counsel 'later'. Another time, again in front of the jury, following a somewhat heated discussion between the trial justice and the plaintiff's counsel, the trial justice advised the plaintiff's counsel to 'go review the books tonight.' At one sidebar conference, the trial justice went so far as to advise the plaintiff's counsel, upon indicating that he was interrupting her, that she would not 'allow the reporter to take any words from you at this point because I don't think that you are going to do any service to yourself given the type of emotional tantrums that you have been having.' Later in the trial, in front of the jury, the trial justice inappropriately admonished the plaintiff's counsel to 'tone down the histrionics', and advised him that she was 'bewildered' as to counsel's questioning, asserting that she found it to be 'not that important', in effect, irrelevant, and that a question posed by counsel was 'not very good.' During one contentious exchange in front of the jury, the trial justice stated that the plaintiff's counsel had put on a display that was 'clearly, clearly fodder for a contempt citation.' In addition to the foregoing, numerous injudicious remarks were made by the trial justice, both sua sponte and in response to comments made by the plaintiff's counsel. At one point, the trial justice stated to the plaintiff's counsel, in front of the jury, that if counsel were permitted to examine the defendant's expert witness before trial, he would be 'like a leech on a horse.' The trial justice further stated that she was 'astonished at the many things' that counsel said during the course of the trial. We note that the foregoing is not an exhaustive recitation of the incidents that give us cause for concern.

Under the circumstances of this case, by virtue of the cumulative effect of the improper conduct of the trial justice, the plaintiff was deprived of a fair trial. As a result, the jury could not have considered the issues at trial in a fair, calm and unprejudiced manner (see DeCrescenzo v. Gonzalez, 46 A.D.3d 607, 847 N.Y.S.2d 236; Sutton v. Kassapides, 73 A.D.3d 1021, 1021, 900 N.Y.S.2d 687; Gentile v. Terrace Hgts. Hosp., 57 A.D.2d 585, 393 N.Y.S.2d 592; Dicker v. Waldbaum's Inc., 56 A.D.2d 621, 391 N.Y.S.2d 677; Ougourlian v. New 37 York City Health & Hosps. Corp., 5 A.D.3d 644, 774 N.Y.S.2d 749). Accordingly, a new trial against Tsai, before a different Justice, is warranted."