Opposing Counsel Taking Liberties? The Importance of Preserving Client Rights


A $1.2 million dollar verdict against the MBTA was overturned by the Massachusetts Appeals Court recently due to extreme courtroom behavior by plaintiff's counsel, including exaggerated claims of evidence and repeated failure to follow rulings by the court. As a result of the defense counsel's successful preservation of the appellate issues, the Appeals Court struck the award and remanded for a new trial. This case is noteworthy because a reversal for misconduct is rare and serves as a reminder to trial attorneys of the line between zealous advocacy and their role as an officer of the court.

Fyffe v. Massachusetts Bay Transp. Auth., 86 Mass. App. Ct. 457 (2014) involved a plaintiff who was injured on one MBTA green line trolley that collided with another. The trolley operator was texting at the time of the accident. Before trial, the MBTA had agreed that it was liable. The sole purpose of trial was for the jury to determine "the amount of money that would represent fair and reasonable compensation to the plaintiff for the injuries she suffered as a result of the defendants' negligence." Punitive damages were likewise not at issue in the case. The plaintiff sustained a neck injury following the collision and medical records noted significant improvement following a course of physical therapy. She incurred approximately $20,000 in medical expenses and alleged she could not return to work as a gate agent for Delta Airlines due to her inability to lift heavy suitcases.

Despite the limited scope of the trial, plaintiffs' counsel made numerous inflammatory statements in opening and closing. He described the condition of other people on the train after the accident (e.g., "contorted extremities," bleeding, "snapped" necks). He argued that there would be "important" media coverage of the verdict, and that the jurors were the "guardians of safety of all the moms, all of the dads and all of the children, and all of the grandparents that ride in these trains." In the absence of supporting medical evidence, he argued that that the plaintiff had a "daily risk of becoming a quadriplegic." He argued that the MBTA was unwilling to provide headrests, or to take responsibility for the plaintiff's injury.

In each instance, the defense attorney properly objected to the inflammatory statements, thus preserving the issues for appeal. In response, the judge made some curative instructions, but didn't make others. The trial judge denied motions for a new trial and for remittitur.

The Appeals Court found that throughout the trial, plaintiff's counsel consciously disregarded the Court's explicit rulings on a number of issues, which undermined the judge's attempts to remedy plaintiff counsel's misconduct. It determined that as a result of plaintiff counsel's repeated misbehavior, the trial judge was required to "conduct the trial under severe and exasperating handicaps" that served to deprive the defendants of a fair trial. The Appeals Court also found that the defendants appropriately objected and that the prejudice went to the heart of the case. It concluded that the corrective measures taken by the judge were insufficient to negate jury prejudice and the improper remarks "permeated the opening and closing arguments." Finding that the inappropriate conduct could have made a material difference in the outcome, the award was vacated and the case was remanded for a new trial.

The level of misconduct exhibited by plaintiff's counsel in this case is rare, but it is not uncommon for litigators to push the envelope of propriety in both discovery and at trial. Counsel should be prepared to respond to such tactics with collegiality and diplomacy. Establishing the ground rules at the beginning of a matter often sets the stage for success or failure later. Trial attorneys need to remain alert for and object to inappropriate tactics by opposing counsel. Be vigilant in responding to improper conduct and be sure to protect your clients' appellate rights.

Governo Law Firm tracks all civil litigation developments impacting our clients. Please contact Marisa Howe ([email protected]) or Bryna Rosen Misiura ([email protected]) or David Governo ([email protected]) for additional information.