Posted On: November 26, 2008

Preserving the Appeal

Imagine presenting your closing argument to Frankenstein and the Wicked Witch. In a bizarre turn of events, jurors for the 2001 malpractice trial of Zabin v. Picciotto were allowed to don Halloween costumes as the trial came to a close at the end of October. (Thanks to the Docket of Mass Lawyers Weekly for this unusual news.) After an unfavorable decision, the defendants appealed, insisting that the costumes turned the trial into a circus and denied them due process. The appeal claimed that plaintiffs counsel even handed out candy to the jurors! I’m all for developing a positive ethos with jurors, but that’s taking it a bit far.

The appeals court seems to have agreed that things got out of hand. The decision chided the lower court for agreeing to the costume request, which “cannot but have detracted from the seriousness and gravity of formal court proceedings.” But the court denied the request of a new trial, pointing out that the trial judge had consulted with counsel for all parties about the decision and that all counsel agreed to let the jurors have their way.

This case caught my eye because it hits upon a couple of themes I have written about in the past, most recently in Anatomy of a Trial, a book published earlier this month. One of the issues here is the importance of preserving the appeal.

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