Appellate Division, First Department, Considers Whether Calling Defense Counsel and Defense Witnesses “Liars” Denied Defendant a Fair Trial

Attorneys are held to a high moral standard of professional conduct. Even though our system of justice is an adversarial one, attorneys must adhere to a code of certain conduct in the courtroom. Statements by an attorney that would result in an unfair trial are prohibited. Witnesses are also held to a high moral standard of truthfulness in giving testimony, whether at a deposition or at trial, and harsh consequences can result from untruthfulness.

Gregware v. City of New York
2015 NY Slip Op 06408

Attorneys are held to a high moral standard of professional conduct. Even though our system of justice is an adversarial one, attorneys must adhere to a code of certain conduct in the courtroom. Statements by an attorney that would result in an unfair trial are prohibited. Witnesses are also held to a high moral standard of truthfulness in giving testimony, whether at a deposition or at trial, and harsh consequences can result from untruthfulness.

In a recent case heard by the Appellate Division, First Department, the Court considered whether comments by plaintiff’s counsel, who called defense counsel and defense witnesses “liars” during summation, were so improper that they deprived the defendant of a fair trial.

The accident arose from hazardous conditions surrounding a lane that was closed by the City in order to repair a seam in the roadway. The plaintiff was struck by a vehicle on the West Side Highway and suffered debilitating injuries. As determined by plaintiff’s experts, and later by the jury, the lane closure was “’totally inadequate’ and a ‘severe deviation from the standards.’”

The closure forced vehicles to merge without warning, which led to a two-car accident in the early morning hours of May 20, 2006. After the accident, work resumed without changes to the lane closure. Two hours later, a five-car collision took place. Due to a blind spot at that portion of the road, the plaintiff could not see the stopped vehicles and rear-ended one of the vehicles in that pile-up.

While he was standing in the roadway with other drivers exchanging information, the plaintiff was struck by his own vehicle when it was rear-ended by another car that had also driven through the blind spot. The plaintiff suffered multiple injuries that will force him to undergo additional surgeries and physical therapy for the rest of his life. The plaintiff brought suit against the City of New York, the construction company hired by the city to make the road repairs, and the driver that struck him.

At trial, a police officer witness called by the defense testified vividly as to the details surrounding the accident, despite his testimony two years earlier at his deposition that he had no recollection, even after an attempt was made to use notes in his memo book to refresh his recollection.

During his summation, counsel for the plaintiff pointed out the inconsistencies of the officer’s testimony and questioned the credibility of the City’s attorney and its experts. He told the jury, “So when we focus on what [the City’s counsel] Mr. Wang was saying, credibility? Credibility, Mr. Wang? Really? Your own witness lied.” He also referred to the City’s counsel as “Wang and his gang.”

A verdict was rendered in favor of the plaintiff holding the City 65% responsible for plaintiff’s injuries and the construction company 35% responsible. The jury found the City and the construction company acted with “reckless disregard for the safety of others.” The plaintiff was awarded $2.2 million for past pain and suffering and 3.8 million for future pain and suffering. The plaintiff’s wife was awarded over $1million for past and future loss of services and consortium.

The City’s counsel did not object to any of the comments during the summation.
However, the City did make a motion for a mistrial based on what it believed to be “personal attacks on counsel” and “comments with racial overtones” affecting the outcome of the trial.

The First Department found that the comment referring to “Wang and his gang” did not have racial overtones, but instead referred to the numerous attorneys who had participated in the proceeding.

The Appellate Division also considered prior case law holding that attorneys are prohibited from bolstering their cases by repeatedly calling witnesses liars. Nonetheless, it found that the comments made during summation by plaintiff’s counsel could not be regarded as “highly inflammatory” because it “strains credulity that the officer would suddenly recollect details concerning the accident when he had been unable, during the course of two prior depositions, to recall anything regarding the accident, even after counsel attempted to refresh his recollection using his own memo book. A fact-finding jury would have considered such inconsistencies regardless of the comments made by counsel.”

Although references to the City’s counsel and witnesses as “liars” were deemed to be improper, they “constituted fair comment on the evidence,” and did not “deprive the defendant of a fair trial.”

The decision in this case was reached by a divided Court. There was a vigorous dissent by Justice Sweeny, in which Justice Tom joined. Justice Sweeney wrote that “counsel’s expression of ‘skepticism’ went well beyond the pale of fair comment.” Justice Sweeney concluded “Based on the record in this case and the lessons of our prior holdings, we should remand the matter for a new trial.”

It remains to be seen whether this matter will be reviewed by the Court of Appeals.

To read the full case, click here.

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