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Why would the Defense Attorney Repeatedly Ignore a Ruling by the Judge

By Rosenberg, Minc, Falkoff & Wolff, LLP. posted in Medical Malpractice on Sunday, April 05, 2015.

Defense Attorney does not Heed the Judge's Ruling

Defense Attorney does not Heed the Judge's Ruling

One of the circumstances that regularly happens in a medical malpractice case and other civil cases is that the judge will rule that the defense cannot talk about a certain issue, but the defense attorney will keep talking about it and the plaintiff lawyer has to keep raising objections. What does the judge do in such instances?

In a medical malpractice trial, the judge has previously ruled that the defense attorney is not to talk about a specific issue. However, in the middle of questioning one of the plaintiff's key witnesses, the defense attorney begins asking the same exact questions that he has already been told not to talk about. The plaintiff will raise an objection and tell the judge that the defense attorney has repeatedly been doing this and is trying to open up the forbidden topic again.

What does the Judge Do?

In such a situation, the judge will most likely turn to the defense attorney and tell him that a ruling was made and he was already warned not to talk about this. The defense attorney will then most probably move on to something else. However, what happens when during the course of the trial, the defense attorney repeatedly tries to invoke this topic again into the court conversation and atmosphere, and asks the same set of questions?

The plaintiff's attorney will keep objecting, but what happens if the defense keeps doing it repeatedly. The judge will warn the defense in front of the jury several times, and the judge will not be pleased to find that the defense attorney is ignoring his legal instructions to stay away from this topic.

Two Strategies

The defense may be doing this repeatedly as a strategy. There are usually two types of strategies that the defense attorney might be using in order to get the judge all riled up and angry that he is now violating the judge's verbal instructions. One of the reasons is that the defense lawyer might want to create an appealable issue.

The lawyer might feel that he is going to lose the trial, and he will create an issue so that it will be clear when a higher court reviews this trial on appeal. The higher court will see that there was an issue; the judge should not have ruled the way he did, and should have allowed the defense attorney to ask these questions and go down this pivotal avenue.

Another strategy is where the defense attorney would want to push the judge over the edge is when he wants generate some sympathy for himself and his client. The idea is to play the martyr, where the attorney will want the judge to feel that he is only doing his job of protecting his client's interest. He will want the judge to believe that he has the legal right to ask those questions. In all likelihood, the judge will tell the attorney to take it up on appeal.

However, there might be an ulterior motive where the attorney tries to generate sympathy from the jury because the judge is yelling at him repeatedly and admonishing him for only trying to represent his client in the best fashion possible.

Possibly could Backfire

The efficacy of these strategies can only be judged by the result. Which is whether the lawyer manages to turn the jury in the defense's favor or the judge's ruling is overturned on appeal since the jury did not care of the point the attorney was trying to make and sided with the judge and the defense.

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