Day on Torts
The risks of pushing through the envelope at trial are discussed in this opinion from the Ohio Supreme Court:
"In addition to the excessive damages given under the influence of passion or prejudice, the trial court detailed the misconduct of McLeod’s counsel. Civ.R. 59(A)(2). The court described counsel’s conduct as “discourteous” and “theatrical,” including “constant interruption of opposing counsel without bothering to object and obtain a ruling” so that he could “convey to the jury his own idea of what the witness should be saying, thus testifying for the witness, rather then [sic] making a genuine and valid objection to the question.” These interruptions, for example, included statements such as “This is all made up,” and “where did he come up with that, Judge?” and were asserted with no accompanying objection. This type of conduct became so prevalent that the trial
judge admonished counsel during a conference outside the presence of the jury."
…
"The trial court also found that counsel exceeded the bounds of zealous advocacy by accusing the witnesses for the defense of “prevarication” and making this a theme for his entire case despite having no evidence of a cover-up. The extent of this theme is evidenced by counsel’s closing argument, in which he referred repeatedly to a spoliation-of-evidence claim that the trial court had
previously dismissed via directed verdict. Counsel’s closing argument ignored this ruling and referred to the alleged cover-up several times. Without any evidence supporting the claim that any of the appellants intentionally acted to destroy evidence of negligence, counsel’s statements bore no relevance to the case and appealed only to the jury’s passion or prejudice."
Result? A $30 million dollar verdict was reversed and the case remanded for new trial. Read the opinion in Harris v. Mt. Sinai Medical Center, NO. 2007-OHIO-5587 (Oct. 25, 2007) here.
I have no problem with this result. We all know the rules, and there must be a price for not following them. Sure, the appropriate board of responsibility can take action, but an adversary party should not pay the price for inappropriate conduct in the courtroom.
The key, of course, is that the rules must be applied equally. I have seen outrageous conduct by opposing counsel in courtrooms that has not been appropriately punished. Judges must apply these rules across the board. To be sure, anyone can make a mistake, but repeated violations of court orders must result is prompt action by the judge.