Day on Torts
Unfortunately, I have been in a trial where opposing counsel repeatedly violated a Court’s order on a motion in limine. Therefore, I must admit I took some pleasure in reading this opinion where the Roman Catholic Diocese of Burlington, Vermont was sanctioned because its counsel violated such an order. The sanction? A mistrial and an award of $112,000 in sanctions.
This is how the Court summarized what occurred that gave rise to an award of sanctions:
Before the June trial, plaintiff filed a motion in limine to exclude any reference to a sexual relationship between Willis [a Roman Catholic priest] and plaintiff’s brother. The trial court granted this motion, stating that "[d]efense questions about this subject are barred as being irrelevant to the case before the court." During its cross-examination of plaintiff, defendant inquired into this relationship. The court sustained numerous objections from plaintiff during the cross-examination. During a break in the trial, the trial court entertained plaintiff’s motion for a mistrial and costs. At that time, defendant indicated that it wanted reconsideration of the pre-trial ruling prohibiting it from showing that plaintiff’s brother and Willis had a sexual relationship. The court orally granted plaintiff’s motion, followed by a written ruling when plaintiff moved for the imposition of costs. The court concluded that during the cross-examination, defendant’s attorney "repeatedly and deliberately violated the court’s pre-trial ruling by asking questions which were designed to tell the jury about this relationship." The court granted plaintiff’s motion for mistrial "because nothing short of a mistrial could have cured the prejudicial effects of defense counsel’s repeated violation of the trial court’s pre-trial ruling."
On appeal, the defendant did what one would expect – blame the plaintiff’s lawyer, blame the judge, and argue that the Order on the motion in limine wasn’t clear. My favorite argument – and that Court’s rejection of it – is set forth below:
Defendant argues that it did not know it was risking a mistrial and sanctions. As discussed above, defendant disobeyed the court’s order. The trial court had no obligation to specifically warn defendant that such a violation may result in a mistrial and sanctions. As we have held above, the court had the power to declare a mistrial and impose sanctions for violation of the pre-trial order, and lawyers are expected to know of this power. For the above reasons, we hold that the superior court acted within its authority in declaring a mistrial and imposing a compensatory sanction on defendant. We affirm the court’s action.
Those of you who are parents last heard such an argument from a pre-teen child – "You didn’t tell me that I couldn’t go to Jimmy’s birthday party if I didn’t clean my room!"
Plaintiff’s lawyers are in a difficult position when opposing counsel willfully violate a Court’s order on a motion in limine. Asking for a mistrial usually means another trial months later and spending hundreds of hours preparing for it. And, depending when the wrongful conduct occurs, it means that your opponent has gotten a good look at your case, which means you have to weigh the harm caused by the misconduct against re-trying the case after you have put your cards on the table.
The trial judge and the Supreme Court of Vermont are to be congratulated for having the courage to hold the defendant accountable for this misconduct. The kudos are even more warranted because 40% of the citizens in Vermont belong to the Roman Catholic Church.
The case is Turner v. Roman Catholic Diocese of Burlington, Vermont, 2009 VT 101 (Oct. 9, 2009).
Note: for those of you that have followed the tsunami of litigation against various Roman Catholic dioceses in these cases, the Vermont Court joined a long list of other courts in saying that the church could not avoid its responsibility by hiding behind the First Amendment.