Mediation Message No. 115

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 115

MAKING AND PRESERVING OBJECTIONS TO MISCONDUCT

Despite the best laid plans of mice and men, attorney misconduct at trial will not disappear very soon. (Sorry to burst the bubble of all of the optimists out there.) So, the recipients of such scurrilous and despicable conduct must be prepared to meet these attacks. I’m not talking about meeting fire with fire because judges and jurors will generally condemn both miscreants; instead, I’m talking about protecting the record in a jury trial so appellate courts can address the misconduct, if brought to their attention.

In this regard, a simple objection to the misconduct, even if sustained, will not be sufficient to protect the record. In addition to objecting, which must be timely, counsel must also request that  the jury be admonished to ignore the misconduct, whatever it might be. If both a timely objection and a request for an admonition are not made, the issue is waived. (Horn v. Atchison, Topeka, Santa Fe Ry. Co. (1964) 61 Cal.2d 602, 610; Sabella v. Southern Pacific Co. (1969) 70 Cal.2d 311, 318-319.) An admonition request is not needed where the case is tried to the court. (People v. Scott (1997) 15 Cal.4th 1188, 1217.) Note, too, that attorney misconduct that was not objected to may be considered as grounds for a new trial. (Malkasian v. Irwin (1964) 61 Cal.2d 738, 747.)

A failure to object or request an admonition is excused if either would have been ineffective. (Sabella v. Southern Pacific Co., supra, 70 Cal.2d 311, 319.) A request for an admonition is excused if the court overruled the objection so that there was no opportunity to make the request that the jury be admonished to disregard the wrong. (People v. Hill (1998) 17 Cal.4th 800, 820.) Also, a request for an admonition is probably not required where the court, after a timely objection and, on its own, indicates that the jury will be instructed to disregard the misconduct. (People v. Kipp (2001) 26 Cal.4th 1100, 1130 [“Because the trial court indicated that the jury would be instructed ‘not to be guided by passion or sympathy,’ the defense may have concluded that the instruction would function as an admonition.”])

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, October 2015

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