Magna Trust Co. v. Illinois Central Railroad ( 2000 )

JUSTICE CHAPMAN,

dissenting:

I concur in the majority’s ruling on all the issues it discusses except for its ruling on the violation of the court’s in limine order, and as to that issue only, I would reverse and remand for a new trial. Therefore, I dissent.

On the first day of trial the court ordered plaintiff’s counsel to refrain from mentioning in his opening statement the drinking activities and the suicide attempt of the decedent’s 12-year-old daughter. On the second day of trial, during his opening statement, plaintiffs counsel told the jury:

“Leslie, at twelve years old, started drinking. In fact, Dr. Mellinese [sic] will tell you that it was reported to him in his medical history that she tried to commit suicide shortly after her father’s death.”

There could not be a more clear violation of a more direct order. Whether the violation was deliberate and intentional or merely inadvertent has a bearing on the sanction a judge might impose on the lawyer, but we are not concerned in this appeal with the effect of the violation on the judge. We are concerned with its effect on the jury in this case, and I am concerned with its effect on the conduct of counsel in future cases.

The majority concludes that the brevity of the statement, the fact that there was no reference to such evidence during the trial, and Leslie Jones’s own testimony could have diffused the prejudicial effect of the statements. I cannot agree.

In my judgment, the fact that the violation was brief is entitled to little consideration. Brevity should not be equated with weakness:

“Give me liberty, or give me death.”

“Remember the Alamo.”

“Yesterday, December 7, 1941 — a date which will live in infamy — “

Each of these statements is shorter than the violation, but each sent this nation into war.

The majority’s second point, that there was no further reference to the evidence during the trial, is also unpersuasive. It is because the trial court had ruled that this evidence was not admissible that the in limine order was entered and that no further reference to it was made.

The majority’s third point, that Leslie’s own testimony could have diffused any prejudice, implies a recognition that some corrective measure was required. The proper corrective measure was the declaration of a mistrial.

I agree with the majority that the trial judge is entitled to discretion, but in my judgment, he abused his discretion when he denied defendant’s motion for a mistrial in this case.

Opinions are not written just to exhibit the reasons for appellate court’s decisions; they also serve as guides for the future conduct of trials. In my judgment, the majority’s ruling on this issue sends absolutely the wrong message to both trial counsel and trial courts. To trial counsel it says, “You are free to violate court orders.” To trial courts it says, “You are free to overlook the violations of your orders.” I disagree with both these propositions, and I, therefore, respectfully dissent.