(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)
In Granville v. Parsons, supra, the action before the jury involved only one defendant. In his opening statement counsel for the defendant advised the jury that there had been other defendants, and the court made an inconclusive ruling on plaintiff’s objection. Counsel argued that the plaintiffs “know who was the guilty party…because…[he] was a defendant in this action and settlement….” Ibid. at 301-02. When former defendants were called as witnesses the defendant brought out that they had been dismissed as defendants and had paid the plaintiff in settlement for his brain injuries. No admonition or instruction was given to limit the effect of that impeaching testimony.
The court ruled on appeal, “… from the record before us we can come to only one conclusion: that defense counsel got carried away in his enthusiasm and deliberately argued the evidence concerning the dismissal and the settlement for an improper purpose.” [Citations.] The case was extremely close. The misconduct was prejudicial. (Granville v. Parsons, supra, 259 Cal.App.2d at p. 304.)
The conduct by defense counsel in the above cited case is directly analogous to that of Mr. Jones’s closing argument in the Black trial. This conduct alone would give rise to grounds for a new trial, but in the Black case it was even more inequitable. While allowing the defendant to inappropriately argue or inform the jury that Mr. Lyon had settled, implying fault and compensation, the court precluded the plaintiff from reciprocally being able to inform the jury that Iris Black was a plaintiff and had settled with defendant White. Iris Black did not elect not to sue Mrs. White. Mrs. White made the same decision to settle that Mr. Lyon made in reference to both plaintiffs in this auto accident case. There was in effect not only misconduct, but an unequal playing ground.
Arguments of counsel that are unsupported by facts in evidence are misconduct which justify a new trial. It is well settled that misconduct of counsel is such an irregularity and a ground for new trial. City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870 citing Malkasian v. Irwin (1964) 61 Cal.2d 738, 745; Gray v. Robinson (1939) 33 Cal.App.2d 177, 182-184; 5 Witkin, Cal. Procedure (2d ed. 1971) § 24, p. 3602.) (See Part 12 of 12.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.