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Appeals court condemns 'puerile name calling' and reverses verdict because of lawyer's comments

A lawyer representing a teen injured when she was struck by a drunken driver didn’t get the message when the trial judge warned him to stop making improper arguments, according to a New Jersey appeals court.

The lawyer continued to make inappropriate comments at trial and took a similar tack in the brief on appeal, according to an unpublished per curiam opinion by the Superior Court of New Jersey’s Appellate Division. Law.com (sub. req.) covered the decision.

“The tenor and text of plaintiff’s brief exceeds zealous representation,” the appeals court said in a footnote. “Plaintiff’s merits brief is replete with untoward indecorous remarks. For example, he refers to defendant’s brief as ‘describing a delusional case’ based on ‘made-up facts.’ ” The plaintiff’s brief also claimed that the defendant waited until the court loss to “rewrite history, magnify the minutiae, and claim that it was deprived a fair trial,” the footnote said.

The appeals court sided with the defense and reversed a verdict for the teen in Burkert v. Holcomb Bus Service Inc. The “objectionable remarks” by the plaintiff’s counsel “infected the deliberative process,” the court said. Law.com identifies the lawyer as George Badey III of Badey Sloan & DiGenova in Philadelphia.

The 17-year-old girl was struck by a drunken driver in December 2007 after the school bus service, Holcomb Bus Service, let her off about three-tenths of a mile from her designated bus stop. The plaintiff settled with the drunk driver and proceed to trial against the bus service and its driver. Jurors awarded $5 million and found the bus service and driver were 75 percent at fault. The trial judge found the verdict was excessive and reduced the amount by 50 percent, but refused to order a new trial.

The appeals court said the trial lawyer improperly told jurors to “send a message” to the bus company, which is not allowed in New Jersey suits for compensatory damages. The lawyer also said the defendant “refused to take responsibility” for the accident, forcing the plaintiff to wait five years for a trial. And the lawyer also suggested—twice—that opposing counsel’s line of questioning was “stupid.”

“Suggesting counsel’s line of questioning is ‘stupid,’ merely because one disagrees is offensive and unprofessional,” the appeals court said. “Puerile name-calling is condemned.”

Badey issued this statement to the ABA Journal: “We were disappointed by the decision. The trial judge was the one present in the courtroom throughout the trial. He addressed each of the issues raised post-trial by the defense. He found no harmful error.

“The opinion of the trial judge … concludes: ‘Many of the alleged errors were in my opinion, not errors at all. Some were not even objected to by defendant. Others resulted in sustained objections and on a couple of occasions curative instructions. There was not an abnormal number of objections during the trial and for the most part the attorneys were civil to each other. Here there was ample evidence to support the jury’s verdict on liability and the allocation of fault 75 percent to Holcomb and 25% to [the drunken driver].’

“Some of the issues discussed by the appellate division were never even raised to the trial judge, but instead were raised for the first time on appeal. We are weighing our options at this point.”