For a while, people enjoyed sharing interesting, and often cautionary, tales from Zoom hearings and trials. (Who can forget Zoom cat lawyer?!?) That doesn’t seem to be as much of a thing anymore, perhaps because we have all become more accustomed to and adept at virtual hearings. But a recent unpublished decision from the Appellate Division shows that there are still lessons to learn.
In Hernandez v. La Fortaleza, Inc., plaintiff sued defendant after she allegedly slipped on an “uneven and raised . . . walking surface” at defendant’s restaurant. The case was bifurcated and proceeded to a virtual trial on liability. Before trial, the judge instructed counsel on the logistics of the virtual trial, including where witnesses could be seated, who could be in the room with them, who could speak with them, and how exhibits would be presented to them. Plaintiff’s counsel indicated that plaintiff would be his first witness and that counsel would not talk to plaintiff about her testimony during her testimony, “even if they broke for lunch.”
During plaintiff’s testimony, plaintiff’s counsel shared his screen with plaintiff to show her a picture of defendant’s property. Counsel asked plaintiff to use the cursor on her computer to identify the location of the fall. Plaintiff had trouble doing so and it appeared to the trial court that someone else was in the room helping her. When asked, plaintiff confirmed that it was her husband. Because he was a co-plaintiff, the trial court allowed him to stay in the room but instructed him to stand where he would be visible on the screen. When plaintiff continued having trouble using the cursor to identify where she fell, the trial court recessed for lunch and instructed plaintiff’s counsel to “straighten out” the issues “with the exhibits and the utilization of the cursor.”
This is when things took a turn for the worse, at least for plaintiff and her counsel.
During the break, CourtSmart, the system that records proceedings for the record, was not running. But a backup recording system was, and it recorded plaintiff’s counsel doing more than helping plaintiff use the cursor. Specifically, it recorded the following exchange:
[Attorney]: This is the important part of the case. You show this picture, okay? Okay? and I’m going to say, I don’t know if we got this far already but do you recognize this picture? Yes. This side of the restaurant? Does it show – does it fairly and accurately show the way the restaurant looked on the day that you fell? Yes. You must say that or the picture cannot be good. Okay? So, I want you – and the answer has to be, yes, because if you say, no, we can’t do it. But you will say the same thing, I’m going to ask you the same question later.
Anyway, okay. Do you see – do you see the bench that you were going to at the time you fell? You’re going to answer, yes, right. And I will say to you, I’m going to move the cursor – and I will say I’m going to move the cursor. You tell me where is the bench? So, when I get up here, just, right there. Okay? The bench, right next to the lady. Okay? Okay.
Now in this picture, do you see where you fell and I’m going to put it right where the – where the bench – from where the bench it, where did you fall?
I will move the map. It’s out of the (indiscernible). So, after we identify the bench, I’m going to put the [cursor] right here now and say, do you see the area where you fell? Yes. Okay. Now, how do I have to move the – you – because it has to be her voice. How do I move the cursor to find the place where you fell? So you should – –
[Plaintiff]: Back.
[Attorney]: Okay. So, down, right, like that? [Attorney]: So, you say, move down. So, I’m going to move it, move it, move it. You have to tell me when to stop. Right there, right? Okay. How about this distance from the curb? Would it be right this way or further here? It would be in the middle?
[Plaintiff]: Yeah.
Two paralegals from defendant’s counsel’s office (and the trial court’s clerk) heard this exchange. In addition to the portion above, one of the paralegals also heard plaintiff tell her lawyer other incriminating things, including that “it had been so long [plaintiff] didn’t remember where she fell.”
Defendant moved for a mistrial immediately. The next day, the trial court granted the motion, holding that there was a “possibility of taint as to the critical issue in a liability only bifurcated trial” and that there was no appropriate remedy other than declaring a mistrial. The trial court further ordered plaintiff to reimburse the court for the costs of transcription. Finally, the trial court allowed defendant to move for dismissal with prejudice “due to the issues of fundamental prejudice.”
Not surprisingly, shortly thereafter, defendant moved for dismissal with prejudice. The trial court granted the motion, holding: “The conduct of the attorney here to invite a client to state that an accident occurred in a particular place when she had no independent recollection to resolve the issues of liability where she was the only witness to the fall itself introduces prejudice too great to present to the finder of fact. The well of information that could be presented to the jury has been forever poisoned.” The trial court further held that counsel’s instructions were intended to “create a falsity and commit fraud on [the] court.”
Plaintiff appealed, arguing that there was no fraud on the court and that the penalty imposed by the trial court was too severe. The Appellate Division rejected both arguments.
First, it found ample evidence to support the trial court’s finding of fraud on the court: “[P]laintiffs’ attorney, after indicating he would ‘not talk to [plaintiff] about her testimony at any time during the testimony, even if we break for lunch,’ proceeded ‘to perpetuate a falsity’ by inviting, indeed directing, [plaintiff] to create an issue of liability by ‘stating that an accident occurred in a particular place when she had no independent recollection.’” The Appellate Division further noted that neither plaintiff nor her husband “resisted their attorney’s coaching,” but were instead “willing participants in a scheme to provide false testimony in an ongoing trial.”
Second, the Appellate Division affirmed dismissal with prejudice as the appropriate penalty, holding that no other remedy would have cured the prejudice plaintiffs and their counsel created: “Prejudice is self-evident when an attorney directs a client to testify to the location of an accident when the client has no independent recollection. From that point forward, [plaintiff’s] every utterance was suspect and her case, the ‘judicial process,’ and ‘the administration of justice’ were ‘poisoned’ and ‘tainted’ as a result.”