Monday, March 12, 2012

Garcia v. ConMed Corp. (Cal. Ct. App. - March 8, 2012)

I can get on board for the Court of Appeal's opinion in this case.  Yes, what defendant's counsel did in her closing statement was misconduct.  But the trial court gave an appropriate admonishment (though, personally, I might have been a bit harsher), and I can see why the jury found for defendant at trial wholly apart from the misconduct.  So I agree with both the trial court and Court of Appeal that the verdict need not be reversed.

But if I were to trade places with Justice Premo, I might have made sure to mention the defendant's counsel -- Genese Dopson -- by name and to reaffirm in no uncertain terms my displeasure at the deliberate decision she made to engage in misconduct during her closing argument.  This is especially appropriate, in my mind, when your misconduct works and avoids sanction, and particularly when (as with Ms. Dopson) we're talking about a seasoned trial lawyer who knew full well what she was doing.
You may perhaps get away with it, as she does here.  But the Court of Appeal might nonetheless want to go out of its way to make sure that there's an informal sanction (and integrity hit) reaffirmed in the permanent pages of the California Appellate Reports as an ancillary consequence of this victory.