Day on Torts
Lawyers who cheat need to be popped – hard. Here is an article about a defense lawyer who commented during opening statement on evidence that had been excluded by the trial judge. The appellate court reversed an order of sanctions against him.
I was in a trial a little over a year ago where the defense lawyer repeatedly violated an order on a motion in limine. The lawyer knew that we did not want a mistrial and the judge refused to come down hard when the order was violated. I knew that asking for sanctions would be an exercise in futility.
I do not know all of the facts of the PA case so it is difficult to know whether the appellate decision is right or wrong, but from what appears in the article it seems to me that, at the very least, the defense lawyer knew or should have known that he was pushing the envelope. In my opinion it is the responsibility of the lawyer to know what the judge has ruled in limine, and if he or she does not understand the ruling to ask for a clarification. It is not appropriate to gamble on what the order means and ask for forgiveness later.
Then again, my clients gain no advantage when I put error into the record.