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No. 34271 - Catherine I. Smith and John Smith v. Derek Andreini, M.D. and Orthopaedic
Ketchum, J., concurring, in part, and dissenting, in part:
I concur with the majority opinion's scholarly discourse regarding the law of
mistrials and new trials.
I respectfully dissent, however, to the majority opinion's holding that a new trial
should not have been granted. The error in this case was invited by defendant's counsel.
In oral argument, before this Court, defendant's counsel stated that it was
important for the trial court and this Court to understand that defense counsel's references to
liars during closing argument was merely responding to plaintiff counsel's argument that the
defendant and some of his witnesses were liars. Defense counsel states he was arguing that
plaintiff counsel's characterization of the defendant and his witnesses was unfair.
However, the defendant's counsel did not have the plaintiff's counsel's closing
remarks transcribed for review by the trial court, when the defendant responded to the
plaintiff's motion for a new trial. Defendant's counsel waited 20 months until after the trial
court granted a new trial to order a transcript of the plaintiff counsel's closing remarks. By
this time the court reporter had died and her notes of the trial testimony lost. No transcript
is now available and, unfortunately we cannot read a transcript of the argument to verify
defense counsel's claims.
A reasonably prudent attorney responding to a motion after verdict, particularly
one involving the remarks of opposing counsel, would have had those remarks transcribed
immediately and filed in the court record with a supporting legal memorandum. By waiting
until after the trial court ruled on the post-verdict motion 20 months later, the trial court did
not have the transcript to consider. The trial court - relying upon his memory of the trial
proceedings - concluded that the defense counsel's closing comments prejudiced the outcome
of the trial. More importantly, this Court can now only guess at what happened during the
plaintiff's portion of the closing argument.
It is obvious defense counsel invited error by the trial court by not providing him
the transcript to consider when ruling on the new trial motion. The trial court's recollection,
if mistaken, was enhanced by the dilatory conduct of counsel. The defendant's counsel does
not have clean hands and should not prevail because the trial court and this Court do not have
an ostensibly important part of the closing arguments to review.
At oral argument before this Court, the defendant's counsel shrugged off the lack
of a transcript as harmless, saying hindsight is 20/20. The defense's failure to promptly
obtain the transcript of opposing counsel's argument was not a peccadillo.
I therefore respectfully dissent to the reversal of the trial court's order granting
a new trial.