Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant. REPLY BRIEF IN SUPPORT OF MOTION FOR NEW TRIAL BECAUSE OF ATTORNEY MISCONDUCT Defendant, City and County of Denver ("Denver") has moved for a new trial in this case because of the pervasive misconduct of Plaintiff's attorney, Mark E. Brennan ("Brennan"). In its Motion, Denver showed that on more than 80 occasions during trial, Brennan improperly ­ and intentionally ­ engaged in misconduct that so prejudiced the jury against Denver that it was deprived of a fair trial. In his Response, Plaintiff, William R. Cadorna ("Cadorna"), does not dispute the scores of instances of misconduct by his counsel. Instead, Cadorna attempts to avoid the consequences of Brennan's misconduct ­ a new trial ­ with five arguments. First, Cadorna pretends that Denver did not preserve the misconduct issue. Second, he contends that none of the instances of misconduct was individually so significant as to warrant a new trial. Third, Cadorna asserts that the prejudice was ameliorated by the Court's curative instructions. Fourth, he argues that Denver waived its right to a new trial because it failed to object to some of the improper conduct. Fifth, he claims that

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Denver did not establish that the misconduct was prejudicial. Cadorna's arguments are without merit. I. DENVER'S NEW TRIAL MOTION IS PROPERLY BEFORE THE COURT. Cadorna first argues that Denver waived its right to request a new trial under Fed. R. Civ. Rule 59 because it failed to move under Fed. R. Civ. Rule 50 for judgment as a matter of law based on Brennan's misconduct. (Resp. at 2-3). Cadorna is wrong. "Unlike a motion for judgment as a matter of law, a motion for new trial does not have to be preceded by a Rule 50(a) motion prior to submission of the case to the jury." Freund v. Nycomed Amersham, 347 F.3d 752, 765 (9th Cir. 2003).1 Indeed, Cadorna's

argument is facially untenable. A motion for a new trial based on misconduct requires a determination of whether the fundamental fairness of the trial was impaired by the misconduct. See, e.g., Helgeson v. Am. Int'l Group, Inc., 44 F. Supp. 2d 1091, 1103 (S.D. Cal. 1999). That determination cannot be made until a jury verdict is returned. II. CADORNA HAS FAILED TO REBUT DENVER'S SHOWING THAT BRENNAN ENGAGED IN PERVASIVE AND SUBSTANTIAL MISCONDUCT. Cadorna does not challenge Denver's showing that Brennan engaged in more than 80 instances of misconduct during the trial of this action. Instead, Cadorna

pronounces the acts of misconduct to be merely "'wretched little pieces' from the trial" that have been "blown out of context in an effort to make them meaningful." (Resp. at 2, 13 (supposedly quoting Koufakis v. Carvel, 425 F.2d 892, 904 (2nd Cir. 1970)).)2

1

Thus, the three cases cited by Cadorna are inapposite because they concern the preservation of post-trial claims under Rule 50.
2

Cadorna cannot even get his claimed quotation of Koufakis right. Koufakis nowhere uses the phrase "wretched little pieces." Rather, the Second Circuit noted that the district court's refusal to grant a new trial was based on an observation that "wrenching 2

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Cadorna's attempt to minimize Brennan's misconduct fails for three reasons. First, many of the incidents cannot, by any stretch of the imagination, be characterized as insignificant. Rather, they were direct challenges to this Court's authority and

fairness, and continuous refusals to follow the rules of conduct required for a fair trial. Fairly early in the trial, for example, Brennan accused the Court, in the presence of the jury, of prejudicing the jury against him: MR. BRENNAN: I will do my best to comply with your admonition, your Honor. THE COURT: Thank you. I will help you. MR. BRENNAN: I wonder if the jury should be hearing this kind of remonstration all the time which I think has a tendency to prejudice them against me. THE COURT: Well, that's ­ MR. BRENNAN: Because you are in essence passing judgment upon my competence as an attorney in their presence. THE COURT: You are doing that now in the presence of the jury. . . . Mr. Brennan, I find those final remarks deliberately made in the presence of the jury to be highly disrespectful of the court, in violation of Rule 103(c), and an effort on your part, apparently, to pad the record with injected prejudice. The only way the court can stop inappropriate behavior when it sees it is to do so on the record, and I did so, and that's a fortiori, sir, when this is not the first or second but the multiple time in which you insist in disregarding the admonishment of this court, which is proper and appropriate, not to suggest to the jury evidence which has not yet been admitted. (Tr.430:25-432:4 (emphasis added) (Ex. C to Mot.).) Later, toward the end of the trial, Brennan repeated his accusations of bias, again in the presence of the jury, leading to a citation for contempt:

[not wretched] little pieces of argument out of a long record like this doesn't properly reflect the entire flavor of the trial." 425 F.2d at 900 (quoting district court's statement during oral argument). Cadorna does not mention the Second Circuit's statement immediately following this quotation: "We have read the record, and we cannot agree with this conclusion." Id. (emphasis added). Thus, the repeated references to "wretched little pieces" are misquotations by Cadorna, of an incorrect observation by the district court, that was ultimately rejected by the Second Circuit in Koufakis. 3

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[MR. BRENNAN:] You have foreclosed me from calling them for examination on this subject without -- let me put it this way -- you have prevented me consistently from examining any officials for the City & County of Denver with respect to their decisions denying my client's reinstatement. . . . I don't think this is this court's intention. I am sure it is not. I hope that the court will set aside its contempt of me to ensure my client has a fair trial. If you want to take up any of my conduct in this trial, that's fine. Just so it doesn't affect this trial to the detriment of my client. THE COURT: I have no personal or professional contempt for you. MR. BRENNAN: I have sensed otherwise, your Honor, with all due respect. . . . THE COURT: One of the ways in which you have managed to provoke the court periodically is, despite the requests and admonishment to the contrary, interrupt the court as it speaks. In some instances it was inadvertent, in other instances it's simply a matter of you wishing to have the last word and to bully the court, which the court cannot and will not tolerate. MR. BRENNAN: I ­ THE COURT: And that's my perspective. You stated yours. MR. BRENNAN: Yes, sir. THE COURT: But I am stating mine. MR. BRENNAN: No, I have ­ THE COURT: Please, Mr. Brennan, it's my turn. MR. BRENNAN: I respect your opinion. THE COURT: Please be quiet. Please be quiet. I ruled. MR. BRENNAN: I am not trying to bully you, sir. THE COURT: Madam clerk, if you will again remove the jury from the courtroom, please. . . . THE COURT: During the court's colloquy with counsel and the plaintiff at its bench . . . Mr. Brennan continually and without cause interrupted the court in its remarks. If this had been the first such rude, contemptuous interruption, the court would have simply disregarded it, as I have during this trial on so many previous occasions. But enough is enough.

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Once again, I find that the conduct of counsel on this occasion in rudely interrupting the court, despite its earlier previous innumerable instructions and requirements to the contrary, to be contemptuous. It is offensive to the dignity of this court. It has affected yet another delay in these trial proceedings. Again, to the detriment of the court, these parties, counsel, and importantly, this trier of fact. Therefore, I find that Mr. Brennan has committed a direct contempt of court, the sanction for which shall be the imposition of a fine of $500, and I warn Mr. Brennan that for each subsequent violation, that fine shall be doubled. (Tr.1457:13-1461:12) (Ex. C to Mot.).) Other instances of serious misconduct abound.3 Moreover, when Brennan was not challenging the authority or objectivity of this Court, swearing at opposing counsel, or making accusations of criminal conduct, he was constantly engaging in improper objections, editorializing, inappropriate

questioning, or other misconduct, leading to repeated admonitions by the Court. (See, e.g., Tr.514:24-515:18 (Ex. G to Mot.) ("Mr. Brennan, you continue to rhetorically speechify the objection. This is of no assistance to the court. I am about to be

convinced that this is done deliberately in disregard of the court's written, and now verbal, admonitions of requirements."); Tr.586:1-19 (Ex. G to Mot.) ("Mr. Brennan, there are to be no further unsolicited editorial comments after receipt of a question."); Tr.607:6-608:14 (Ex. G to Mot.) ("Mr. Brennan, despite my reiterated admonitions, you continue to sprinkle unsolicited editorial comments as a part of your putative examination of this and other witnesses. As a result, that has caused delay, interruption in these proceedings, to the detriment of the jury, the court, and to the parties and their counsel. Mr. Brennan, enough is enough.").) These and other repeated instances of

3

(See Tr.875:9-10 (telling counsel to "get the fuck out of my face"); Tr.876:22-877:2 (calling counsel a "fucking weasel"); Tr.1131:14-1132:9; 1607:1-14; 1616:1-19 (disparaging counsel to jury); Tr.1131:14-1132:5 (attacking Safeway's counsel); Tr.1605:9-15 (accusing Safeway of lying under oath) (Ex. E to Mot.).) 5

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misconduct inarguably were significant and substantial.4 Second even if the instances of misconduct may not have been significant in isolation ­ a conclusion that is impossible to draw for most of them ­ in ruling on a motion for a new trial, a court must consider the "totality" of the circumstances." E.g., Hopson v. Riverbay Corp., 190 F.R.D. 114, 122 (S.D.N.Y. 1999); Davis v. Mut. Life Ins. Co. of N.Y., 6 F.3d 367, 387 (6th Cir. 1993). And here, it is incomprehensible how anyone ­ even Cadorna ­ could argue that the cumulative impact of more than 80 acts of misconduct by Brennan was anything other than substantial. Thus, Cadorna's

attempt to minimize the importance of Brennan's improper conduct by evaluating a few instances of misconduct separately and in isolation fails. Third, even if the sheer volume of improper acts alone does not compel the conclusion that the totality of Brennan's misconduct was substantial, when the underlying purpose of the acts is considered, their prejudicial nature becomes clear. At trial, Brennan cast (a) Cadorna in the role of a misunderstood hero who wanted only to perform his duty of protecting others but was impeded and obstructed by officious bureaucrats; and (b) himself as Cadorna's protector. The theme of Cadorna as hero was emphasized by Brennan in voir dire, where he asked jurors about their heroes (see
4

(See also Tr.1318:23-1319:10 (Ex. G to Mot.) ("Again, questions only. Editorial comments by counsel, as I have instructed and admonished you, are inappropriate. Questions only."); Tr.1391:8-1392:5 (Ex. G to Mot.) ("Enough editorializing. This is the last time. This is the last warning. This is the last admonition. If this persists I will terminate the examination. I do not want to do that. Please ask questions."); Tr.1436:51440:12 (Ex. G to Mot.) ("After being repeatedly admonished, warned by the court with the threat of sanction, including but not limited to termination of cross-examination, Mr. Brennan again violated this court's reasonable requirement, recognized by all courts, that he not editorialize during the propounding of a question or in connection with an answer. . . . That personal comment on the evidence . . . remains improper and inappropriate, the sanction for which is the plaintiff's cross-examination is now terminated.").) 6

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Tr.65:8-66:5) (Ex. O)); in his opening statement (see Tr.97:12-23) (Ex. O)); and in his closing argument (see Tr.1596:2-1597:24) (Ex. F to Mot.)). And the theme of Brennan as protector was reinforced every time he ­ acting as the hero's "champion"5 ­ placed himself in opposition to counsel for Denver, to Judge Criswell, to counsel for Safeway, and to this Court. Accordingly, the impact of Brennan's misconduct was greatly

exacerbated because it reinforced Brennan's "us versus them" message to the jury. III. BRENNAN'S ASSERTION THAT HIS MISCONDUCT WAS AMELIORATED BY THE COURT'S CURATIVE ACTIONS IS ERRONEOUS. The second way in which Cadorna seeks to avoid a new trial is to argue that the Court "appropriately addressed the conduct brought to its attention, ensuring the fairness of the trial." (Resp. at 3.) But Cadorna cannot shift the attention ­ as he cynically tries to do ­ from Brennan's misconduct to the Court's efforts to control Brennan. Denver has no criticism of the Court; it did everything it could to control Brennan, warning and admonishing him time after time, and sanctioning him twice, all to no avail. But as Denver showed in its Motion (which Cadorna has ignored), when a pattern of improper behavior becomes pervasive, warranting repeated reprimands, a point will eventually be reached where the effect of the misconduct on the jury cannot be undone by curative actions. See, e.g., City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749, 759 (6th Cir. 1980); McEnrue, 1993 U.S. Dist. LEXIS 15528, at *49 (Ex. A to Mot.); Koufakis, 425 F.2d at 904; Hopson, 190 F.R.D. at 122-23. That point was reached ­ and vastly exceeded ­ here. Simply put, Brennan defied this Court with impunity, making a mockery of the rules and procedures designed

5

(See, e.g., Tr.1068:18-19 (Ex. P) (testimony by Cadorna that he "had previous experience with you, Mr. Brennan, and knew that you were a champion").) 7

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to ensure fair trials. And the Court had no fairy godmother's wand to whisk the harm away through the intonation of curative instructions. Accordingly, Cadorna's attempt to invoke the Court's restorative actions cannot change the fundamental fact that Brennan's actions so prejudiced the jury against Denver that it was denied a fair trial.6 IV. BRENNAN'S ASSERTION THAT A NEW TRIAL IS NOT WARRANTED BECAUSE DENVER DID NOT OBJECT OFTEN ENOUGH IS ERRONEOUS. In his continuing effort to redirect attention from the more than 80 instances of significant misconduct by Brennan, Cardona next contends that Denver should be denied a new trial because Denver did not object to some of Brennan's misconduct. Cadorna's argument fails for three reasons. First, it ignores the fact that Denver

objected on numerous occasions to Brennan's improper conduct. (See, e.g., Tr.393:15394:5 (Ex. I to Mot.); 586:1-19 (Ex. G to Mot.); 591:24-592:15 (Ex. J to Mot.); 607:6608:14 (Ex. G to Mot.); 761:15-762:12 (Ex. J to Mot.); 1380:10-14 (Ex. F to Mot.); 1391:8-1392:5 (Ex. G to Mot.)). Indeed, during trial, Denver made hundreds of

objections that were sustained.7 But as courts have recognized, responding to every objectionable act or question by an attorney eventually becomes counterproductive. As one court recognized, "Requiring defense counsel to object to every single instance in this overladen record in which plaintiffs' counsel acted objectionably would cause considerable prejudice in the eyes of the jury." Fineman v. Armstrong World Indus.,
6

This is particularly true because the Court ­ understandably concerned with not prejudicing the jury against Brennan and Cadorna ­ took most of its curative actions outside the presence of the jury.
7

For example, objections by Denver that were sustained during just the first two days of trial testimony can be found at the following pages of the Trial Transcript: 154, 169, 170, 206, 216, 219, 224, 226, 228, 290, 299, 300, 303, 305, 306, 318, 320, 321, 336, 341, 343, 345, 346, 352, 358, 360, 362, 364, 393, 396, 404, 409, 411, 414, 415. (Ex. Q). 8

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Inc., 774 F. Supp. 266, 272 (D.N.J. 1991), aff'd, 980 F.2d 171, 207 n.26 (3d Cir. 1992). Further, although Denver may not have objected to every instance of misconduct, constant objections are not required to grant a new trial. Koufakis, 425 F.2d at 900; Brownlee v. United Fidelity Life Ins. Co., 117 F.R.D. 383, 385 (S.D. Miss. 1987). Rather, the focus in considering a motion for a new trial is whether the combined effect of the misconduct affected the fairness of the proceedings. See Slip Op. at 2, Wilder v. Turner, No. 02-K-732 (D. Colo. Sept. 29, 2004) (Kane, J.) (Ex. B to Mot.). When attorney misconduct creates a reasonable probability that fairness was compromised, a new trial should be granted regardless of whether opposing counsel objected at trial. See Fineman, 774 F. Supp. at 272-73. V. CADORNA'S ASSERTION THAT THE JURY WAS NOT AFFECTED BY HIS MISCONDUCT IS MERITLESS. Finally, Cadorna argues that there was no reasonable probability that the jury was affected by Brennan's misconduct because he had a strong case. (Resp. at 14.) In truth, however, there was virtually no evidence that the Denver Fire Department's actions were due to age discrimination, and Cadorna concedes that the Court found the evidence of willfulness to be "weak." (Resp. at 14.) Moreover, Cadorna completely ignores the strongest evidence of prejudice here: "the verdict itself." Davis, 6 F.3d at 387. The jury's award of damages ­ which greatly exceeds the maximum amount that could have been awarded based on the evidence ­ makes the prejudicial impact from Brennan's misconduct pellucid. 8

8

In a post-verdict article, Brennan himself acknowledged that the jury's verdict was due to passion and prejudice. Brennan told the reporter that Cadorna "was approached by members of the jury after the verdict who said they favored the plaintiff early and just awaited the chance to award [sic] him financially." Carolyn Matthews, 'Jury From 9

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Finally, in addition to the large number of acts of misconduct, the weakness of Cadorna's case, and the grossly excessive amount of the jury's verdict, there is also evidence of Brennan's prejudicial influence from the jury's question of whether it could award attorneys' fees. (Tr.1646:11-13 (Ex. N to Mot).) Although Cadorna tries to

characterize the jury's inquiry as "neutral," in truth it reveals how powerfully the jurors had been swayed by Brennan's tactics, and its solidarity with Brennan, the "champion" of Cadorna. The fact that the jury considered Brennan's compensation a significant issue in its deliberations evidences the prejudicial effect of his misconduct. Ballarini v. Clark Equip. Co., 841 F. Supp. 662, 667 (E.D. Pa. 1993). CONCLUSION For the reasons set forth above and in the Motion, Denver requests that the Court grant Denver a new trial in this case. Respectfully submitted this 23rd day of February, 2007. BROWNSTEIN HYATT FARBER SCHRECK, P.C. By: _s/ Richard P. Barkley_________ Richard P. Barkley James S. Hardy 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202-4437 (303) 223-1100 s/ Christopher M.A. Lujan____________ CHRISTOPHER M.A. LUJAN Assistant City Attorney Denver City Attorney's Office, Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720.913.3100 ATTORNEYS FOR DEFENDANT Heaven': Jurors Over Age 55 Aided Lawyer in Winning $1.2M Verdict, LAW W EEK, December 12, 2006, at 1, 13) (Ex. R). 10 See

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 23rd day of February, 2007, a true and correct copy of the foregoing REPLY BRIEF IN SUPPORT OF MOTION FOR NEW TRIAL BECAUSE OF ATTORNEY MISCONDUCT was served via the CM/ECF system to the following: Mark E. Brennan, Esq. Mark E. Brennan, P.C. P.O. Box 2556 Centennial, Colorado 80161 Email: [email protected] s/ Richard P. Barkley_________ Richard P. Barkley

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