Lioce v. Cohen
| Decision Date | 17 January 2008 |
| Docket Number | No. 44458.,No. 45405.,No. 44823.,No. 45331.,44458.,44823.,45331.,45405. |
| Citation | 174 P.3d 970 |
| Parties | Gregory J. LIOCE, Appellant, v. Dana S. COHEN; Morry Cohen; and John C. Wilson, Respondents. Tiffany Lang, Individually and as Guardian Ad Litem of Alicia P. Lang, a Minor; and Joseph Lang, Individually, Appellants, v. Jennifer Knippenberg, Respondent. Luis Castro, Appellant, v. Vanessa Cabrera; and Sylvia Cabrera, as the Natural Parent and Legal Guardian of Gabriel Cabrera, a Minor, and Nicholas Cabrera, a Minor, Respondents. James Seasholtz, Appellant, v. Lindsay Wheeler, Respondent. |
| Court | Nevada Supreme Court |
George T. Bochanis, Las Vegas, for Appellants Tiffany and Joseph Lang.
Edward S. Coleman, Henderson, for Appellant Lioce.
Emerson & Manke, LLP, and Phillip R. Emerson, Henderson; Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Appellants Castro and Seasholtz and for Respondents Wilson and Knippenberg.
Dennett Winspear, LLP, and Ryan L. Dennett, Las Vegas, for Respondents Dana and Morry Cohen.
Chad M. Golightly, Las Vegas; Andrew M. Leavitt, Las Vegas, for Respondents Vanessa and Sylvia Cabrera.
John F. Kirsch, Reno, for Respondent Wheeler.
Burris, Thomas & Springberg, P.C., and Andrew J. Thomas, Las Vegas; Galloway & Jensen and Robert R. Jensen, Reno; Mathew L. Sharp, Reno, for Amicus Curiae Nevada Trial Lawyers Association.
Robison Belaustegui Sharp & Low and Jennifer L. Baker and Barry L. Breslow, Reno, for Amicus Curiae Nevada Association of Defense Counsel.
BEFORE THE COURT EN BANC.1
INTRODUCTION
On December 28, 2006, this court issued an opinion in these consolidated appeals.2 The defendants in each of the four underlying personal injury cases were represented by the same attorney, who gave substantially the same closing argument on behalf of his clients at each trial. Asserting that defense counsel's closing arguments constituted misconduct, the plaintiffs sought new trials, with varying success.
In that opinion, we revised the standards under which district courts are to evaluate requests for new trials based on attorney misconduct. Next, we reversed the denial of the motions for new trials in Lioce v. Cohen and Lang v. Knippenberg, and affirmed the grant of new trials in Castro v. Cabrera and Seasholtz v. Wheeler. Additionally, we determined that the defendants' attorney's closing arguments in Castro and Seasholtz amounted to misconduct, and we remanded those cases with instructions to the district courts to calculate and impose monetary sanctions on defense counsel and his clients.3 Finally, we referred defense counsel to the State Bar of Nevada for disciplinary proceedings. This petition for rehearing followed. Having considered the petition, answers, amici curiae briefs, and the replies, we conclude that en banc rehearing is warranted in part under NRAP 40(c). We therefore grant the petition in part, vacate our prior opinion in this matter, and issue this opinion in its place. On rehearing, we reach substantially the same conclusion as in our prior opinion, but we decline to impose monetary sanctions on defense counsel and his clients.
Because defense counsel's closing arguments encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them, we agree that they amounted to misconduct. In determining whether the district courts properly decided that this misconduct warranted new trials or not, we take the opportunity to revise our attorney misconduct jurisprudence. New trial requests based on attorney misconduct must be evaluated differently depending upon whether counsel objected to the misconduct during trial. When a party successfully objects to the misconduct, the district court may grant a subsequent motion for a new trial if the moving party demonstrates that the misconduct's harmful effect could not be removed through any sustained objection and admonishment. With respect to unobjected-to misconduct, we conclude that the district court may grant a motion for a new trial only if the misconduct amounted to plain error, so that absent the misconduct, the verdict would have been different. When ruling on a motion for a new trial based on attorney misconduct, district courts must make express factual findings, applying the above standards.
In these consolidated appeals, we conclude that in Castro and Seasholtz, the district courts did not abuse their discretion by granting the plaintiffs' motions for a new trial, and therefore, we affirm the district courts' orders in those matters. In Lang and Lioce, however, we are unable to ascertain from the record whether the district courts abused their discretion in denying the plaintiffs' motions for a new trial. Accordingly, we vacate those orders and remand those two matters for a new decision on the new trial motions, based on the standards announced today. In addition, we refer defense counsel to the State Bar of Nevada.
These four appeals involve substantially the same closing argument given in each case by Phillip Emerson, the defendants' attorney. The cases are presented below in chronological order based on the date of the jury trial: (1) Castro (July 2004), (2) Lioce (September 2004), (3) Lang (October 2004), and (4) Seasholtz (November 2004). This chronology shows how Emerson's closing argument developed over time.
Castro v. Cabrera (Docket No. 45331)
This case arose from an automobile accident, in which appellant Luis Castro rear-ended respondents Gabriel and Nicholas Cabrera's vehicle. Police cited Castro for causing the accident. The Cabreras then sued Castro, alleging that they were injured in the accident. Castro retained Emerson to defend against the Cabreras' claims.
The parties attended the court-annexed mandatory nonbinding arbitration program, and because Castro paid his citation without protest, he informally stipulated to his liability for the accident.4 The arbitrator found in the Cabreras' favor and awarded them damages.
After the arbitration award was rendered, Castro sought a trial de novo, arguing that he was not liable for the accident because the sudden emergency doctrine applied. Castro contended that, under that doctrine, he was not negligent because another vehicle suddenly entered his traffic lane, which caused him to then veer into the Cabreras' traffic lane to avoid being hit.
At trial, during closing argument, Emerson argued that the Cabreras had wasted the jurors' time and the taxpayers' money. Emerson said, Emerson also stated that the Cabreras' case was frivolous and that cases like the Cabreras' were responsible for the decline of the legal profession's reputation. Specifically, Emerson argued:
I also want to apologize if any of you thought that I was overzealous at times during this trial or if any of my remarks or examinations of the witnesses offended. If I offended you, I sincerely apologize. That was not my intention. But, you see, this is a case where the plaintiffs are trying to get something for nothing. You're probably wondering why I've spent so much time and energy on defending this case. It's not a big case. It's not a million-dollar case. You're not going to hear about this in the paper.
But, you see, I have a real passion for this kind of case. It's cases like this that make people skeptical and distrustful of lawyers and their clients who bring these type of lawsuits. It's a big factor as to why our profession is not as honorable in the eyes of the public as it once was. But the only way that people and their chiropractors will stop bringing these cases is if juries start saying no, enough is enough. Our legal process is meant to justly compensate and make one whole, not to make them rich.
The Cabreras did not object to the above statements. Following trial, the jury found in Castro's favor. The Cabreras moved for a new trial, arguing that Castro's attorney, Emerson, had committed attorney misconduct during his closing argument.
When addressing the Cabreras' motion for a new trial, the district court found that Emerson's closing argument constituted misconduct and that, cumulatively, the misconduct permeated the entire proceedings, requiring a new trial. In discussing Emerson's misconduct, the district court specifically referenced Emerson's statements regarding "these type of cases" and the fact that Emerson gave a "personal opinion as to the justness of the case." Castro appeals, arguing that the district court abused its discretion by granting a new trial.
Lioce v. Cohen (Docket No. 44458)
This case involved a multi-vehicle traffic accident, after which appellant Gregory Lioce sued respondents Dana Cohen and John Wilson for injuries he sustained in the accident. Wilson retained Emerson to defend him against Lioce's suit.
At trial, the parties disputed how the accident occurred and who was at fault. Lioce stated that he was traveling eastbound down a Las Vegas street when respondent Dana Cohen turned left into his vehicle. Cohen, however, testified that Lioce changed lanes and hit her vehicle. According to Cohen, when Lioce's vehicle came to rest following the collision with her vehicle, Lioce was then rear-ended by Wilson. Wilson testified that he was not negligent because another vehicle cut in front of him and he swerved, hitting Lioce's vehicle.
During closing argument, Emerson argued, as he did in Castro, that Lioce was wasting taxpayers' money and jurors' valuable time. Emerson expanded that argument, however, and said:
Ladies and gentlemen, at some time, at some point in time, we must say enough is enough. People must accept responsibility for their lives and their actions and not blame others for life's challenges and...
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