Witness Coaching Leads To Dismissal With Prejudice

In an unpublished decision, the New Jersey Appellate Division declined to disturb the dismissal of a slip-and-fall claim for litigation misconduct.

The virtual trial began with the liability phase

The trial began on July 26, 2022. In discussing some of the mechanics of the virtual trial, the attorneys and the trial judge reviewed where witnesses could be seated and the presentation of exhibits. [Plaintiff] Hernandez’ attorney stated “she w[ould] be the first witness and [he] w[ould] not talk to her about her testimony at any time during the testimony, even if [they] br[oke] for lunch.”

Hernandez was summoned as the first witness. The trial judge explained to her “you must be alone in the room from where you provide your testimony, except the co-plaintiff, your husband may also be in the room.”

Technical issues ensued and the court recessed for lunch

Defense counsel raised an objection asserting “[o]n [the] critical issue of liability of this nature, no coaching is tolerable, zero coaching.” The trial judge reiterated the point to plaintiffs’ attorney:

Nobody else should be in the room but her husband. I made that clear. That was the oath. If anybody else is in that room, they must leave. Her husband must be visible meaning behind her. He is not to open his mouth, do you understand that, until it is his opportunity to testify.

Coaching by the attorney during the break was recorded; defense counsel sought a mistrial

The parties returned to virtual court the following day. Defense counsel renewed his request for a mistrial or, alternatively, a dismissal of plaintiffs’ complaint with prejudice. The trial judge, after listening to the recording, found: (1) plaintiffs and their counsel had already been warned against coaching; (2) she “had to direct plaintiffs not to offer each other advice or direct each other how to answer”; (3) she “had to direct th[e] litigants to sit together on screen so[] as to remove any resemblance of impropriety”; and (4) plaintiffs’ attorney “exacerbated the concerns of coaching by sharing his screen unmuted during a recess and revealing conversations . . . to be coaching the witnesses, to direct as to where the slip and fall occurred in the liability only portion of a bifurcated trial.”

The trial judge concluded that she was compelled to declare a mistrial. She determined a mistrial was necessary because Hernandez was in the middle of her testimony and there was a “possibility of taint as to a critical issue in a liability only bifurcated trial—where . . . Hernandez fell.” Moreover, “[t]he prejudicial effect in this circumstance [wa]s far too great and balance weigh[ed] too heavy in [the] misadministration [of] justice, that there [wa]s nothing that c[ould] be done other than to order a mistrial . . . .”

The judge later had dismissed the case with prejudice.

Here

We conclude there is “adequate, substantial, and credible evidence” to support the judge’s finding that plaintiffs and their attorney committed a fraud on the court. Rova, 65 N.J. at 484. Initially, Pereyra failed to comply with the judge’s instruction on coaching Hernandez. Ultimately, the judge required Pereyra to stay in screen view by standing behind Hernandez. The judge admonished plaintiffs’ attorney that Pereyra “should not be opening his mouth to say anything.”

Moreover, plaintiffs’ attorney, after indicating he would “not talk to [Hernandez] about her testimony at any time during the testimony, even if we break for lunch,” proceeded “to perpetuate a falsity” by inviting, indeed directing, Hernandez to create an issue of liability by “stat[ing] that an accident occurred in a particular place when she had no independent recollection.”

This conduct “set in motion [an] unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude, 892 F.2d at 1118.

Dismissal with prejudice

Under these circumstances, plaintiffs’ and their attorney’s actions compelled the judge to impose the ultimate sanction of a dismissal with prejudice. As the judge explained, “the bell cannot be unrung; [p]laintiff’s testimony will be forever tainted by the directive of [p]laintiff[s]’ trial counsel.” We find no monetary sanction or further corrective instructions could remove the “taint,” permeating throughout plaintiffs’ claim.

(Mike Frisch)