Schmidt, Sethi & Akmajian Blog

Evidence/Civil Procedure: New Trial Appropriate Based Upon Trial Counsel’s Misconduct

Posted by Ted A. Schmidt | Apr 06, 2017 | 0 Comments

Varco, Inc. v. UNS Electric, Inc., 761 Ariz. Adv. Rep. 37 (App. Div. II, March 23, 2017) (J. Miller)


Plaintiff sued defendant for negligent placement and maintenance of its utility pole. It was alleged an electrical arch from the pole caused a fire destroying plaintiff's warehouse.  Plaintiff's motion in limine to preclude introduction of evidence of a cigarette butt on the property, the absence of property insurance and the failure to obtain fire inspections was granted based upon relevance under 401, Ariz. R. Evid., and  a finding the evidence was more prejudicial than probative, confusing the issues, and confusing to the jury pursuant to Rule 403, Ariz. R. Evid. The trial court indicated this ruling was to include evidence regarding the absence of a certificate of occupancy, fire code violations and smoking in general unless and until defendant could produce evidence of a causal connection between any of these items and the fire.  Despite this ruling, and frequent objections, defense counsel repeatedly asked witnesses about each of these points. The trial court also found defense counsel's failure to disclose portions of deposition transcripts it read during the trial to prejudice plaintiff's trial presentation. The jury returned a defense verdict. The trial court granted plaintiff's motion for new trial based upon attorney misconduct and the Arizona Court of Appeals affirmed.

It was significant to the court of appeals that the defendant did not designate a transcript of the motions hearing as part of the appellate record regarding these evidentiary issues resulting in the court of appeals  presuming the missing transcript would support the court's ruling. The court noted that prejudice occurs when the misconduct “(1) is significant, such as knowing, deliberate violations of court orders; (2) involves essential and important issues"; and, (3) is apparently successful in achieving its goals.  In finding prejudice existed here the court of appeals stated, “the trial judge is in the best position to assess prejudice because he has ‘had the unique opportunity to hear the testimony and argument, observe its effect on the jury, and determine through his observations that the trial ha[s] been unfairly compromised.”

Thus the court of appeals held: “Reasonable evidence supports the court's finding the misconduct was significant, deliberate, and directed at key issues of causation and damages.”

Finally the court found that Rule 59(a)(1)(B), Ariz. R. Civ. P. does not require a finding that the misconduct caused the jury to reach an erroneous result. “Indeed, misconduct itself may make it impossible to determine the effect on the outcome.”

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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