The following is a series of three articles excepted from the New Jersey Law Journal regarding one of Larry Leifer's cases.
For Want of a Tape, A Case Was Lost
November 5, 2007
For Want of a Tape, a Case Was Lost
Judge orders mistrial when failure to record testimony leaves jury hung
By Henry Gottlieb
A mistrial caused by a courtroom recording failure may have cost a medical malpractice plaintiff in Essex County up to $560,000 of a high-low settlement, and it is stirring calls for more stenographers in New Jersey courts.
The incident also prompted administrators in Essex to order an overhaul of the court entire stock of aging tape machines - the audio version of used cars from the early 1990s.
Judge Verna Leath declared the mistrial on Sept. 26 after she was unable to meet the jury's request for a playback of crucial testimony during a six-day trial. Without the testimony, the jury declared it was deadlocked.
Leath did not know at the time that the lawyers went to trial with a high- low agreement to cap any verdict at $800 000, but give the plaintiff at least $240 000 in case of a verdict below that, a no cause or a hung jury.
So Leath s grant of a mistrial didn't give the plaintiff s lawyer another chance to try the case. A strict reading of the high-low agreement requires the plaintiff to take the $240 000 minimum.
"Who could have anticipated something so strange" says plaintiff's lawyer Larry Leifer of Maplewood. He wrote to Chief Justice Stuart Rabner to complain and his client says an award dictated by a reporting glitch is a travesty of justice. Last week, Leifer asked the trial judge to set aside the high-low agreement and order a retrial on grounds the pact did not contemplate a mistrial due to technical error.
"This was not a hung jury, this was mistrial due to a loose plug;' he says in a motion returnable Nov. 16. Defense lawyer David Weeks of Ruprecht Hart & Weeks in Millburn wants the agreement enforced.
Parties who make high-low deals know that no matter what a judge or jury rules, there will be no right of appeal or post-trial motions, Weeks says.
"Sure it's unusual, but it's no different than the many things we all agree to waive so that there is finality;' he says. "The bottom line of these things is that when it's over it's over."
In Branhain v. Raina, Esx-L-744-05, Justine Branham is suing as the executrix of the estate of her sister, Annabelle Jones, who died of breast cancer in 2006.
The plaintiff's evidence at the trial said defendant Suresh Raina, a doctor at the University of Medicine and Dentistry-New Jersey, misdiagnosed a mass in Jones' breast in 2002 and failed to order a biopsy, causing the cancer to flourish and, ultimately, Jones' death.
The defense countered that Raina met the standards for care and that even if she had ordered more tests the outcome would have been the same.
other side. So the day the trial started on Sept. 17, Weeks wrote the high-low agreement in longhand and he and Leifer signed it.
"As is standard in such agreements, the net verdict governs and any verdict of $240,000 or less (including a judgment of no cause for action or other dismissal) or a mistrial due to a hung jury will result in the defendant paying $240,000," the agreement says.
The judge wasn't told. Weeks says that's common because lawyers don't want judges to be influenced by the fact that their rulings are not going to be subject to appeal.
About two hours after the jury began deliberating, it requested a playback of the cross-examination of a defense expert. But when a clerk played the tape it was inaudible. Leath declared a mistrial.
Leifer argues in his motion that the phrase "mistrial due to a hung jury" is inapplicable because the mistrial was due to audio failure. And if the phrase is ambiguous, it should be construed against the defense because Weeks was the scrivener.
"There was no meeting of the minds and no contemplation by the parties to the events which befell the parties to this litigation, in terms of a 'loose plug," he says.
Weeks says the phrase "mistrial due to a hung jury" is designed for the protection of the plaintiff and insures against a defense lawyer engineering a mistrial through mischief.
November 12, 2007
A Troubling Event - After complaining that an audio breakdown at a trial might have cost his client a huge sum, plaintiff's lawyer Larry Leifer has received what he terms a positive response to his call for better recording methods.
A medical malpractice case Leifer tried in September ended in a hung jury and mistrial in Essex County because the tape of testimony the jury wanted played back was blank.
But an $800,000-$240,000 high-low settlement required Leifer to take $240,000 in the event of a mistrial caused by a hung jury instead of the usual retrial for mistrials caused by technical glitches.
Leifer's motion to set aside the settlement is pending. And last Monday he received a answer from the Supreme Court to his plea for steps to prevent future incidents of this kind.
"I am particularly troubled by the possibility that the failure of court equipment might have caused a mistrial," wrote Judge Philip Carchman, acting administrative director of the courts. Though he couldn't address the merits of the case, Carchman said the audio equipment that caused the problem is being replaced by digital recorders and that courtroom technician training is being expanded.
"It's a step in the right direction," says Leifer, of Leifer & Levine in Maplewood.
December 10, 2007
Inaudible - An Essex County judge ordered a retrial Friday rather than force a plaintiff to accept a $240,000 settlement in a case complicated by a rare audio malfunction.
In September, after a medical malpractice trial, Judge Verna Leath was forced to declare a mistrial because a tape recording of testimony the jury aid it needed to rehear was blank.
The unexplained glitch in Branhain v. Raina was crucial because lawyers had made a high-low agreement that capped the jury verdict at $800,000 but assured the plaintiff $240,000 in the event of a verdict below that, a no cause or a hung jury.
Plaintiff's lawyer Larry Leifer of Maplewood asked Leath to void the high-low and grant a new trial. Something as weird as a mistrial caused by a blank tape was not contemplated in the high-low deal, so the settlement should be voided, Leifer argued.
Defense counsel David Weeks of Ruprecht Hart & Weeks in Millburn said a deal was a deal and the plaintiff should be required to take the $240,000. But the judge agreed with Leifer and ruled on Friday that the state constitutional guarantee of a right to trial made a retrial the right thing.
"Here we go again," Leifer says. A new trial will cost h $18,000 in expert fees, but the worst outcome for him remains $240,000 because the high-low deal is still in effect.
