Day on Torts
The Utah Supreme Court has called-out a lawyer who repeatedly violated court orderson a several motions in limine.
In Barrientos v. Jones, 2012 UT 33 (June 8, 2012), the trial court granted several motions in limine and held that certain alleged conduct or speculation about the conduct of the decedent and others was not admissible at trial because it was either irrelevant or unfairly prejudicial. Notwithstanding these orders, Ms. Heather S. White, an attorney for one of the defendants, repeatedly asked questions regarding the forbidden topics.
The repeated violations of the orders on the motions in limine lead to this statement by the Utah Supreme Court:
The conduct of Ogden City’s counsel, Ms. White, was indefensible. Her questioning of Theresa reveals that Ms. White surrendered, without resistance, to the impulse to win her case by bludgeoning the character of the dead. She pursued this course of action undeterred by court orders that unequivocally forbade her chosen course of action. We condemn Ms. White’s conduct. We admonish her during the retrial of this case to exercise hyper-vigilance in the cause of scrupulously avoiding improper questioning. We are also moved to take note of the false refuge Ms. White might seek by invoking the trial court’s statement that “Plaintiff’s counsel similarly violated a pretrial order when he asked questions concerning the reasons for Officer Jones’s termination.” We have independently reviewed the record on this point. What stands out about Plaintiff’s counsel’s transgression is that it was a one-time event. By contrast, Ms. White was relentless in her pursuit of evidence of bad character.
Needless to say, the jury verdict for defendants was reversed and the case was remanded for trial.
As the Utah Supreme Court mentioned, anyone can make a mistake and violate an order on a motion in limine. In the heat of the moment, there can be a lapse of memory or judgment that results in one raising a point that should not be raised given a prior court order. But there is no justification for repeatedly violating a court order. It is important to note that we are not dealing with a rookie lawyer here – Ms. White has fifteen years of experience and is a shareholder in a major Utah firm. She is presumed to know what she is doing.
Why do some lawyers violate court orders on motions in limine? Because they want to win, and they are hoping to inflame the jury with the evidence that they were ordered not to mention and then hope that their opponent will not be able to convince the trial judge or an appellate court that it made any difference to the outcome of the case. In other words, they hope to contaminate the jury, and then claim later that what they did makes no difference.
The Utah Supreme Court called this one right, and has sent a clear signal that it expects court orders to be followed.