Free Motion for New Trial - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant. MOTION AND SUPPORTING BRIEF FOR NEW TRIAL BECAUSE OF ATTORNEY MISCONDUCT Pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, Defendant, City and County of Denver, Colorado ("Denver"), by and through its counsel, hereby moves for a new trial of this action. The basis for Denver's Motion is that Mark E. Brennan ("Brennan"), the attorney who represented Plaintiff, William R. Cadorna ("Cadorna"), repeatedly committed acts of misconduct that improperly influenced the jury and deprived Denver of a fair trial. D.C.COLO.LCivR 7.1 CERTIFICATION On December 4, 2006, counsel for Denver spoke with Brennan about this Motion. Brennan stated that his client opposed the Motion. INTRODUCTION In McEnrue v. New Jersey Transit Rail Operations, Inc., No. 90-4728 (JBS), 1993 U.S. Dist. LEXIS 15528 (D.N.J. Sept. 30, 1993) (Ex. A), the court declared: In our system of civil justice, which depends upon conduct of attorneys which is both adversarial and ethical, a point can be reached where

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zealous advocacy transcends ethical limits and becomes ad hominem disparagement of the adverse attorney and . . . client. When this happens, conduct of counsel becomes "so prejudicial as to require a new trial." Id. at 39 (quoting Draper v. Airco, Inc., 580 F.2d 91, 94 (3d Cir. 1978)). That point was reached ­ indeed far exceeded ­ during trial in this case. Despite the Court's repeated efforts to control Brennan, by issuing numerous warnings, a citation for contempt, and other sanctions, Brennan flagrantly violated the most basic rules of litigation fair play more than 80 times. And because of Brennan's egregious misconduct, the jury became so prejudiced against Denver that it was denied the right to a fair trial. Denver requests the Court to grant Denver a new trial so that it can defend against Cadorna's claims in a proceeding that is not fatally infected with prejudicial attorney misconduct. ARGUMENT Under Fed. R. Civ. Rule 59(a), "new trials may be ordered 'for any of the reasons for which new trials have heretofore been granted,' including attorney misconduct." Hopson v. Riverbay Corp., 190 F.R.D. 114, 121-22 (S.D.N.Y. 1999) (quoting Fed. R. Civ. P. 59(a)(1)). A new trial is appropriate when "there is a reasonable probability that the jury's verdict has been influenced by the improper conduct of counsel." Slip Op. at 2, Wilder v. Turner, No. 02-K-732 (D. Colo. Sept. 29, 2004) (Kane, J.) (Ex B); accord McEnrue, 1993 U.S. Dist. LEXIS 15528 at 17-27 (Ex. A). In determining whether such a "reasonable probability" exists, a court does not examine each incident of counsel misconduct in isolation. Rather, the court "must consider the 'totality of the circumstances' including 'the nature of the comments, their frequency, their possible relevance to the real issue before the jury, [and] the manner in which the parties and the court treated the comments.'" Hopson, 190 F.R.D. at 122; see also Draper v. Airco, Inc.,

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580 F. 2d 91, 97 (3d Cir. 1978). The fairness of the proceedings, however, remains the essential focus. See Slip Op. at 2, Wilder, No. 02-K-732 (Ex. B); Helgeson v. Am. Int'l Group, Inc. 44 F. Supp. 2d 1091, 1103 (S.D. Cal. 1999).1 When the 'totality of the circumstances' is examined in this case, it becomes clear that there is a "reasonable probability" that the jury's verdict was "influenced by the improper conduct of [Brennan]." Slip Op. at 2, Wilder, No. 02-K-732. (Ex. B) Accordingly, Denver requests the Court to exercise its discretion and grant Denver a new trial. I. BRENNAN'S MISCONDUCT WAS PERVASIVE AND EGREGIOUS. Brennan engaged in extensive and egregious misconduct; the record shows more than 80 separate acts of misconduct during trial. Moreover, the misconduct encompassed a wide range of improper behavior, including (a) arguing with the Court in the presence of the jury, leading to a citation for contempt; (b) disparaging and abusing opposing and non-party counsel; (c) making blatant appeals to the passion, prejudice, and sympathy of the jury; (d) making improper attorney testimonials; (e) obfuscating the record; (f) improperly questioning witnesses; (g) continuing to question witnesses after opposing counsel objected; and (h) misstating the law during rebuttal closing argument. A. On Several Occasions Brennan Engaged in Misconduct Toward the Court in the Presence of the Jury.

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Accordingly, numerous courts have recognized that curative instructions will not "unring the carillon of bells," McEnrue, 1993 U.S. Dist. LEXIS 15528, at *49, when the misconduct is frequent or egregious. See Koufakis v. Carvel, 425 F.2d 892, 904 (2nd Cir. 1970) (Ex.A); Hopson, 190 F.R.D. at 122-23. Similarly, because the focus is fairness, the failure to object will not necessarily provide a basis for denying a new trial motion. See Fineman v. Armstrong World Indus., Inc., 774 F. Supp. 266, 272-73 (D.N.J. 1991); Brownlee v. United Fidelity Life Ins. Co., 117 F.R.D. 383, 390 (S.D. Miss. 1987). 3

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Attorneys commits prejudicial misconduct when their combative nature puts the court in an adversarial position in the jury's eyes. Ballarini v. Clark Equip. Co., 841 F. Supp. 662, 666-67 (E.D. Pa. 1993). Such misconduct can range from repeatedly arguing with the court, to forcing the court to respond to unnecessary arguments, to making inappropriate facial expressions in response to rulings by the court. See e.g., id.; Forrest v. Beloit Corp., 424 F.3d 344, 351 (3d Cir. 2005). In this case, in an attempt to create an improper "us" (Cadorna, Brennan, and the jury) "versus them" (Denver, Safeway, their counsel, and Judge Criswell and this Court) scenario,2 Brennan inappropriately taunted the Court on numerous occasions. For example, Brennan took aim at the Court's objectivity by claiming, in the presence of the jury, that the Court was trying to bias the jury: (Tr. 430:6-432:4; 1457:13-1461:12.) (Ex. C).3 Further, Brennan's misconduct toward the Court was not limited to portraying the Court as an adversary, and acting disrespectfully. Brennan also repeatedly exhibited disdain toward the rulings of the Court. Indeed, on one occasion, the Court was forced to admonish Brennan for making inappropriate facial expressions before the jury in response to adverse rulings by the Court. (Tr. 839:24-840:10.) (Ex. C). B. Brennan Verbally Attacked Counsel, Parties, and Non-Parties Outside and in the Presence of the Jury.

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See Spruill v. Nat'l RR Passenger Corp., No. 93-4706, 1995 WL 534273, at *4-5 (E.D. Pa. 1995) (prejudicial nature of "us versus them" portrayal) (Ex. D); McEnrue, 1993 U.S. Dist. LEXIS 15528 at 41-48 (same) (Ex. A).
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In argument to the Court, Brennan made his "us versus them" strategy overt. (Tr. 1458:10-21.) (Ex. C). Brennan's "us versus them" strategy is also manifest from Cadorna's testimony about why he selected Brennan as his lawyer (Tr. 1063:17-1064:2) (Ex. C), and Brennan's use of "us" and "we" in closing argument. See Spruill, 1995 WL 534273, at *4 (Ex. D). In fact, Brennan's penultimate sentence in his initial closing argument overtly aligned Brennan and his client with the jury with the pronoun "we." (Tr. 1618:18-20.) (Ex. C). 4

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Disparagement of opposing parties and counsel ­ whether directed personally at them, or engaged in as part of the trial's proceedings ­ can provide the basis for a new trial. Draper, 580 F.2d at 96; McEnrue, 1993 U.S. Dist. LEXIS 15528 at *17-27. (Ex. A) Even if confined to closing argument, verbal assaults can form the basis for granting a new trial. See Draper, 580 F.2d at 96; Fineman, 774 F. Supp. at 271. Verbal attacks that cause intimidation and ridicule outside the presence of the jury may also provide grounds for a new trial. McEnrue, 1993 U.S. Dist. LEXIS 15528 at *38-39. (Ex. A) In this case, Brennan's openly abused opposing counsel, parties, and even nonparties. The most egregious instance occurred after Denver's counsel saw Brennan speaking to Cadorna on a break during his direct examination. Denver's counsel reminded Brennan that it was improper to coach a witness during direct examination. Brennan responded: "I am not coaching the witness, get the fuck out of my face." (Tr. 875:9-10 (emphasis added)) (Ex. E). Later, Brennan tracked down Denver's counsel and subjected him to another vulgar tirade. (Tr. 876:22-877:2.) (Ex. E). Brennan also disparaged opposing counsel during closing. (Tr. 1606:23-1607:14; 1615:25-1616:19.) (Ex. E). Brennan's vituperation was not limited to opposing counsel. Brennan attacked counsel for Safeway, which was not even a party to the proceedings. (Tr. 1131:141132:9.) (Ex. E). Further, in his calculated strategy to create "us versus them" impression ­ which pitted "a hero of a special kind, a firefighter" (Tr. 1597:16-1598:1) (Ex. E) against a municipality, a large corporation, and even the judicial system ­ Brennan attacked Denver and Safeway directly, claiming they (or their employees) engaged in dishonest, and even criminal, conduct toward Cadorna. (Tr. 1598:15-21;

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1605:9-15; Tr.; 1604:1-6; 1605:16-1606:14; 1611:13-20.) (Ex. E). See Fineman, 774 F. Supp. at 271.4 C. Brennan Blatantly Appealed to the Jury's Passion and Prejudice.

Improper appeals to the passion, prejudice, or sympathy of the jury may provide the basis for a new trial. See Polansky v. CNA Ins. Co., 852 F.2d 626, 630 (1st Cir. 1988). This is particularly true when the appeals are made during closing arguments. See, e.g., Brownlee, 117 F.R.D. at 385; Draper, 580 F.2d at 95-97; Ayoub v. Spencer, 550 F.2d 164 (3d Cir. 1977). Here, Brennan repeatedly made statements or arguments, or asked questions, both during trial and in closing, that were designed to generate passion, prejudice, or sympathy toward his client. 1. Brennan's comparison of Cadorna with Americans who died in World War II, Iraq, and September 11.

In closing, Brennan improperly compared Cadorna to American soldiers who lost their lives in World War II and Iraq, and firefighters who died on September 11. (Tr. 1596:6-16; 1596:17-24; 1602:23-1603: 6.) (Ex. F). Thus, Brennan transformed Cadorna ­ who had nothing to do with (and whose case has nothing to do with) World War II, Iraq, or September 11 ­ into a member of the same class as these groups of heroes. (Tr. 1597:16-1598:1.) In so doing, Brennan sent a clear message to the jury: It was the jury's patriotic duty to decide in favor of Cadorna.5 2. Brennan's attempt to invoke the James Turney incident.

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Brennan's attacks continue. (See Plaintiff's Response [sic] Defendant's Motion to Enlarge Page Limit on Motion for New Trial and Supporting Brief.)
5

This patriotic message was reinforced by Brennan at the very close of his rebuttal closing argument. (Tr. 1643:4-10.) (Ex. F).

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Brennan also injected the highly inflammatory and totally irrelevant events surrounding Denver Police Office James Turney into the trial by raising them in his cross-examination of an employee of Denver's Department of Public Safety. (Tr. 1380:8-14.) (Ex. F).6 Brennan, therefore, attempted to prejudice the jury, and incite its passion and sympathy, by comparing an irrelevant, but emotionally charged incident ­ the shooting of Paul Childs ­ with the discharge and refusal to reinstate Cadorna, even though any such comparison was a complete non sequitur.7 D. Brennan Constantly Made Improper Attorney Testimonials.

Brennan constantly made improper testimonials in front of the jury, including casting editorial aspersions on the testimony of witnesses, and responding improperly to objections by "speechifying" them. Such misconduct ­ which may also be an ethical violation8 ­ can establish the basis for a new trial. See Fineman, 980 F.2d at 206-10. 1. Brennan's "speechifying" objections.

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James Turney was a Denver Police officer who was found to have wrongfully killed Paul Childs, a 15 year old mentally disabled African-American youth, an event that was well-publicized and captured the attention of the entire community. Denver eventually reached a settlement and paid $1,325,000.00 to Childs' family.
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Brennan also attempted to prejudice the jury by referring to Stan Ford in closing argument. The Court had initially permitted Brennan to present evidence about Ford, but had (a) limited its admissibility to Cadorna's substantive due process claim; and (b) sustained an objection to an inquiry into Ford's race. (Tr. 487:2-488:5.) (Ex. F). Subsequently, the Court dismissed Cadorna's substantive due process claim, rendering evidence about Ford inadmissible. Brennan still raised Ford, and his race, to the jury during closing. (Tr. 1638:21-1639:16.) (Ex. F). See, e.g., Christopher v. Florida, 449 F.3d 1360, 1367 (11th Cir. 2006) (new trial warranted when substantial rights of a party are taken away by improper closing argument that directly mentions matters barred by the court as a matter of law).
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See ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY ETHICAL CONSIDERATION 7-24; CO. S.CT. R. 20.1-3003-3.4. 7

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Despite the Court's Trial Preparation Conference Order, and its repeated admonitions throughout the course of trial, Brennan repeatedly used objections ­ or the opportunity to respond to objections ­ to testify improperly before the jury by "speechifying" his objections. (See, e.g., Tr. 225:6-16; Tr. 277:17-278:12.) (Ex. G). Finally, after a half-dozen or more occasions, the Court held a bench conference and reprimanded Brennan for his conduct. (Tr. 503:1-19.) (Ex. G). Brennan ignored the Court's reprimand, and soon after made yet another speechifying objection. The Court again reprimanded Brennan at a bench conference. (Tr. 514:24-515:18.) (Ex. G). Even then, Brennan continued his improper speechifying. (Tr. 263:13-264:13; 411:3-411:23; 487:2-488:5; 1033:11-1034:7; 1376:18-1378:4.) (Ex. G). 2. Brennan's editorial comments on testimony.

Even more egregious than his speechifying was Brennan's incessant editorial comments in front of the jury. On at least 25 separate occasions Brennan injected editorial comments to a witness's testimony or included editorial statements within the questions posed to them. The Court attempted to control Brennan's improper editorializing. The third time Brennan made a blatant editorial statement, for example, the Court chastised Brennan and instructed him to cease. (Tr. 586:1-19.) (Ex. G). Despite this, Brennan continued unabated, requiring yet another admonition by the Court outside the presence of the jury. (Tr. 607:6-608:14.) (Ex. G). After another

barrage of editorial comments, the Court again instructed and admonished Brennan (Tr. 1318:23-1319:10) (Ex. G)., followed by yet another warning. (Tr. 1386:22-1387:2) (Ex. G). And after Brennan again ignored the Court, it issued what it characterized as a final warning. (Tr. 1391:8-1392:5.) (Ex. G). Even after this warning, the Court allowed at

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least five additional editorial comments by Brennan. (Tr. 1395:10-19; 1405:6-14; 1414:17-21; 1422:12-16; 1429:22-1430:2.) (Ex. G). Finally, the Court sanctioned

Brennan by bringing his cross-examination of a witness to an end. (Tr. 1436:5-1440:12; see also Tr. 444:24-445:10; 499:8-23; 622:10-12; 622:23-623:3; 623:5-10; 782:1782:18; 1052:1-10; 1250:12-15; 1300:24-1301:5; 1322:5-12; 1367:10-20; 1380:241381:12; 1386:12-15.) (Ex. G). E. Brennan's Obfuscation of the Record.

During trial, Brennan directly and indirectly and hindered the proper flow of testimony to the jury, despite the Court's repeated admonitions. (See, e.g., Tr. 1437:231438:3.) (Ex. H). For example, at least eight times Brennan obfuscated the trial record either by failing to allow witnesses to answer questions posed to them, or by posing so many questions simultaneously that it was unclear what question was being asked or answered. (See Tr. 584:22-585:7; 706:4-11; 1309:19-1310:6; 1261:23-1262:6; 1298:231299:14; 1305:15-1306:6; 1316:11-18; 1379:6-22.) (Ex. H). F. Brennan's Improper Questioning of Witnesses.

"The mere putting of a question which conveys to the jury improper information, and which tends to render the trial unfair, should ordinarily entitle the opposing party to a new trial." Chicago, B. & Q. R. Co. v. Kelley, 74 F.2d 80, 86 (8th Cir. 1934); see also Fineman, 980 F.2d at 210. Here, Brennan's attempted to elicit inadmissible testimony by (1) improperly addressing witnesses, (Tr. 280:19-25) (Ex. I); (2) requesting that a witness comment on the testimony of another witness, (Tr. 396:13-25) (Ex. I); (3) asking that a witness to comment on an exhibit that not yet admitted before the jury, (Tr. 430:6-

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431:1) (Ex. I); and (4) at least five times, posing hypothetical questions of lay witnesses. (Tr. 226:2-25; 345:13-24; 393:15-394:5; 1287:9-23; 1399:5-24.) (Ex. I). G. Brennan Constantly Continued After Objections By Opposing Counsel.

At least 17 times Brennan ignored objections of opposing counsel and continuing to question witnesses, despite repeated admonitions from the Court. (E.g., Tr. 591:24592:15.) (Ex. J). By the eighth occasion, the Court took Brennan aside and further admonished him. (Tr. 761:12-762:12.)(Ex. J). Nonetheless, on numerous other occasions Brennan ignored opposing counsel's objections and continue as if no objection had been made. (Tr. 154:10-155:14; 206:18-207:5; 276:25-277:8; 557:13558:9; 750:4-13; 762:17-763:4; 767:23-768:6; 795:10-18; 812:7-25; 1077:1-18; 1078:211; 1082:4-12; 1296:17-24; 1317:5-16; 1615:25-1616:19; 1639:4-17.) (Ex. J). H. At the End of His Rebuttal Closing Argument, Brennan Misstated the Law.

Finally, Brennan's last statement to the jury, at the very end of his rebuttal closing argument, made a key misstatement of the law under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 ("ADEA"), that almost certainly influenced the jury's verdict. See Hopson, 190 F.R.D. at 122 (granting new trial because of numerous misstatements of fact and law and repeated acts of misconduct"); see also Berguido v. E. Air Lines, Inc., 35 F.R.D. 200, 209 (E.D. Pa. 1964). In March 2002, Cadorna retired as a firefighter pursuant to a disability retirement. Under Colorado law, and Denver's pension plan, because he took a disability retirement, Cardona was not eligible to be rehired. See Colo. Rev. Stat. § 31-30-705. Further although the ADEA protects

employees who are 40 years of age or older from discrimination based on age, the

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ADEA has an express exception ­ a safe harbor ­ for employment actions made pursuant to a bona fide state or municipal retirement plan. 29 U.S.C. § 623(j) provides that it "shall not be unlawful" for a municipality to refuse to hire an individual firefighter if he or she has attained the age of retirement pursuant to a bona fide retirement plan. Brennan was fully aware of the ADEA's safe harbor. Nonetheless, Brennan

misstated the law at the very conclusion of his rebuttal closing argument ­ so Denver could not respond to it ­ and told the jury that (a) the decision not to reinstate was a per se violation of the ADEA, (b) the jury had a duty to enforce the ADEA, and (c) if the jury did not, it would "fail in [its] duty." (Tr. 1642:10-1643:22.) (Ex. K). II. A REASONABLE PROBABILITY EXISTS THAT BRENNAN'S MISCONDUCT INFLUENCED THE JURY, AND THUS DENVER IS ENTITLED TO A NEW TRIAL. For attorney misconduct to give rise to a new trial, there must be "a reasonable probability" that the misconduct influenced the jury's verdict. Slip Op. at 2, Wilder, No. 02-K-732 (Ex B). In determining whether such a reasonable probability exists: a court must examine, on a case-by-case basis, the totality of the circumstances, including the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case (e.g. whether it is a close case), and the verdict itself. Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749, 756 (6th Cir. 1980). Here, these factors demonstrates overwhelmingly that it is reasonably probable that Brennan's misconduct influenced the jury's verdict in this case. A. The Frequency of Brennan's Misconduct Demonstrates a Reasonable Probability That It Influenced the Jury's Verdict.

Several courts have concluded that when attorney misconduct is frequent its prejudicial impact is self-evident. See Draper, 580 F.2d at 96-97; Koufakis, 425 F.2d at

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901; Hopson, 190 F.R.D. at 123. Brennan's misconduct was so pervasive ­ occurring on average more than 10 times a day, and more than 80 times during trial ­ and it took place in such a wide variety of contexts, see Ballarini, 841 F. Supp. at 666, that it is hard to fathom how it could not have affected the jury. Thus, the sheer frequency of Brennan's acts of misconduct establishes a reasonable probability of prejudice. B. The Nature of Brennan's Misconduct, and the Manner in Which the Misconduct Was Treated, Demonstrate a Reasonable Probability That the Improper Conduct Influenced the Jury's Verdict.

The nature of Brennan's misconduct ­ and the Court's treatment of it ­ likewise demonstrate a reasonable probability of prejudice. Brennan's actions were not minor, de minimis, errors that would have been unlikely to have any impact on the jurors. To the contrary, the types of improper actions in which Brennan engaged were serious attempts to distort and disrupt the trial process that carried a strong likelihood of prejudice. See, e.g., Ballarini, 841 F. Supp. 662; Fineman, 774 F. 266; Hopson, 190 F.R.D. 114.9 In fact, the Court's numerous (albeit unavailing) attempts to control Brennan's improper actions ­ including sidebars or discussions outside the presence of the jury (e.g., Tr. 839:24-840:19) (Ex. L), admonitions (e.g., Tr. 430:25-432:4) (Ex. L), instructions (e.g., Tr. 1318:23-1319:10) (Ex. L), warnings (e.g., Tr. 1391:2-8) (Ex. L), terminating Brennan's cross-examination (Tr. 1436:5-1437:10) (Ex. L), threatening Brennan with contempt (Tr. 1439:10-14) (Ex. L), and finally citing Brennan for contempt (Tr. 1457:13-1461:12) (Ex. L) ­implicitly acknowledge the reasonable probability of prejudice.
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Moreover, the fact that Brennan engaged in the same misconduct time and time again, despite repeated instructions or admonitions by the Court, demonstrates that the misconduct was not due to mistake, inexperience, or incompetence. Rather it was deliberate. 12

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In addition, Brennan's misuse of the Court's admonitions, instructions, and warnings to his own benefit shows their prejudicial effect. Because of Brennan's "us versus them" theme, every argument with the Court, and every act of misconduct leading to an instruction or admonition by the Court, reinforced the maverick "champion" image Brennan was cultivating (Tr. 1063:19) (Ex. L), and "place[d] the Court, in the eyes of the jury, into what amounted to an adversarial position." Ballarini, 841 F. Supp. at 667. Similarly, every act of misconduct by Brennan toward Denver, Safeway, or their lawyers, highlighted Brennan's resistance to the combined might of a large municipality and a large corporation.10 See, e.g., Fineman, 774 F. Supp. at 271. Accordingly, the prejudicial nature of Brennan's misconduct was exacerbated by Brennan's misuse of rulings by the Court that were intended to prevent future misconduct, increasing the probability that the jury verdict would be impacted. C. The Weakness of Cadorna's Case, and the Excessive Verdict, Demonstrate That Brennan's Misconduct Influenced the Jury.

The probability that Brennan's misconduct improperly influenced the jury is also apparent when the weakness of Cadorna's case is contrasted with the jury's excessive verdict. Cadorna brought two claims under the ADEA: a wrongful termination claim, and a claim for failure to reinstate. The second claim was purportedly supported by a single fact: Judge Criswell refused to order reinstatement because of his conclusion that reinstatement would violate state law. Nonetheless, the jury found a willful violation by

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Brennan's strategy placed this Court and Denver in untenable positions. If the Court admonished Brennan, it enhanced his "us versus them" theme; but if the Court did nothing, Brennan's misconduct was unrestrained. Similarly, if Denver objected to Brennan's antics, Denver became the evil municipality that was trying to hide the facts; but if Denver did not object, it was prejudiced by Brennan's misconduct.

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Denver, a finding that is contrary to law and unsupported by any evidence. (See Motion and Supporting Brief for Renewed Motion for Judgment as a Matter of Law.) Further, assuming the evidence was sufficient to support the remainder of the jury's determinations, in its November 27, 2006 Order, the Court recognized that the evidence of willfulness was not overwhelming. (See Order at 3.) Accordingly, the most that can be said about Cadorna's case is that there was (a) insufficient evidence for an award of liquidated damages as to Cadorna's second claim, and (b) sufficient but not overwhelming evidence as to the remainder of the jury's verdict. Despite this, the jury awarded Cadorna $610,571 in "compensatory damages in the form of back pay:" $100,000.00 on Cadorna's discriminatory termination claim, and $510,571 on his failure to reinstate claim. (Verdict Form A ¶¶ 2-3; Verdict Form B ¶¶ 23.) This amount is almost three times the damages that legitimately could have been awarded based on the evidence. (See Motion to Alter or Amend Judgment and Supporting Brief.) Accordingly, the jury's verdict provides compelling evidence of prejudice. See, e.g., McEnrue, 1993 U.S. Dist. LEXIS 15528, at *40; Heath v. City of Philadelphia, No. A.95-3047, 1997 WL 560606, at *7 (E.D. Pa. Aug. 22, 1997) (Ex. M). D. The Jury's Inquiry About Attorney Fees Demonstrates That Brennan's Misconduct Influenced the Jury.

After deliberating for approximately two hours, the jury sent a note to the Court that stated: "[W]e, the jury, have a question. May the jury award lawyers' fees?" (Tr. 1646:11-13.) (Ex. N). The Court apparently responded by stating that the award of attorneys' fees was "the province of the court." (Tr. 1646:17-1647:13.) (Ex. N). One hour later, the jury returned its verdict awarding Cadorna $610,571. The jury's question in this case is powerful evidence that Brennan was successful in prejudicing the jury.

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See Ballarini, 841 F. Supp. at 667. Regardless whether the jury was interested in rewarding Brennan or in punishing Denver, it clearly had aligned itself with Brennan. Moreover, the jury's question provides a likely explanation for the excessive award. Because of Brennan's "us versus them" theme, the jury did not trust the Court sufficiently to leave the issue of attorneys' fees in the Court's hands, and thus it padded its award. Accordingly, this Court, like the court in Ballarini, should "order a new trial based on [Brennan's] behavior alone." CONCLUSION For the reasons set forth above, Denver requests that the Court grant Denver a new trial in this case. Respectfully submitted this 11th day of December, 2006. BROWNSTEIN HYATT & FARBER, P.C. s/ Richard Barkley_______________ Richard P. Barkley Hamid M. Khan 410 17th Street, 22nd Floor Denver, Colorado 80202 (303) 223-1100 s/ Christopher Lujan_____________ Christopher M.A. Lujan, Esq. Asst. City Attorney, Litigation Section City and County of Denver 201 West Colfax, Department 1108 Denver, Colorado 80202 ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 11th day of December, 2006, a true and correct copy of the foregoing MOTION FOR NEW TRIAL PURSUANT TO FED. R. CIV. P 59(A)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/ Melissa Brenneman_________ Melissa Brenneman

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