Bohman Aggregates v. Gilbert , 2021 UT App 35 ( 2021 )

2021 UT App 35THE UTAH COURT OF APPEALS
BOHMAN AGGREGATES LLC, ET AL., 1
Appellants,
v.
STEVE L. GILBERT AND CRUSHER RENTAL & SALES INC.,
Appellees.
Opinion
No. 20190867-CA
Filed April 1, 2021
Second District Court, Morgan Department
The Honorable Noel S. Hyde
No. 150500016
Jerome Romero and Brent A. Bohman, Attorneys
for Appellants
Bryan J. Pattison and Dana T. Farmer, Attorneys
for Appellees
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
MORTENSEN, Judge:
¶1 After hearing opening and closing statements riddled
with first-person narrative and personal opinions from a pro se
attorney-party-witness, the trial court found that Appellees had
been deprived of a fair trial and granted a new trial. Appellants
contend that by so ruling, the trial court misinterpreted the Rules
of Professional Conduct and abused its discretion. Because we
1. The parties on appeal are not limited to those listed, but also
include other parties whose names appear on the notice of
appeal or who have otherwise entered appearances in this court.
Bohman Aggregates v. Gilbert
agree with the trial court’s rule interpretation, and where the
record demonstrates obvious and consistent violations,
Appellants fail to show that the trial court abused its discretion
in granting a new trial. Therefore, we affirm.
BACKGROUND
¶2 Some years back, Bohman Aggregates LLC assumed
control of an ongoing mining operation and, along with it,
Crusher Rental & Sales, Inc.’s (Crusher) onsite mining
equipment. Eventually, Crusher and Bohman Aggregates
initiated negotiations about the rights to the equipment. During
this negotiation period, attorney Brent Bohman (Attorney
Bohman) assisted with drafting and negotiations. Attorney
Bohman was the brother of Bohman Aggregates’ owner and
lived on the land Bohman Aggregates used for its mining
operation. Allegedly, Attorney Bohman had authority to execute
agreements on Bohman Aggregates’ behalf. But the truth about
what happened next is clear as mud. Bohman Aggregates (and
Attorney Bohman as its representative) and Crusher had
disparate ideas about new equipment issuance, various
payments, and the proposed contracts’ purpose, meaning, and
scope. Despite the parties’ efforts to clarify their contractual
relationship, they disagreed about which documents, as
potentially informed by other communications, became
enforceable contracts and what those supposed contracts even
meant.
¶3 The central dispute revolved around a meeting between
Attorney Bohman and Steve Gilbert, Crusher’s president.
Attorney Bohman alleged that at that meeting he signed an
agreement and wrote the words “subject to addendum” next to
his signature. Attorney Bohman claimed that he “expressly told”
this to Gilbert and wrote “subject to addendum” to ensure the
contract’s “four corners” indicated his conditional acceptance.
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Gilbert, meanwhile, maintained that the contract itself
constituted the entirety of the parties’ agreement. Gilbert
claimed that Attorney Bohman snuck “subject to addendum”
onto the contract after he left the room. When Attorney Bohman
sent an addendum, Crusher rejected it, sent its own proposed
addendum, and filed a mining lien against Bohman Aggregates.
Bohman Aggregates filed a claim against Crusher, seeking to
invalidate the signed agreement. Crusher counterclaimed. And,
in this counterclaim, Crusher sued Attorney Bohman personally
as part of the joint venture.
¶4 The contract’s enforceability, and Attorney Bohman’s
personal liability, hinged, in large part, on whether Attorney
Bohman or Gilbert told the truth about their meeting. Thus, the
jury’s witness-credibility assessment took front and center in the
case. Despite the fact that Attorney Bohman would be a critical
witness, he decided to represent himself. Appellees thus
expressed concerns, both in a motion and at a hearing held four
weeks before trial, about Attorney Bohman abiding by Utah
Rule of Professional Conduct 3.4 (rule 3.4). 2 Appellees’ counsel
asserted,
My concern is Rule 3.4. As an advocate, [Attorney]
Bohman simply can’t help himself. . . . He gives his
opinion; accuses me of things; he calls testimony
false, unreputable; my client’s a liar; we’re acting in
bad faith. He cannot help but give his opinion as
an advocate. And there’s no constitutional right to
violate Rule 3.4.
2. Rule 3.4 prohibits a lawyer from asserting “personal
knowledge of facts in issue except when testifying as a witness”
and from stating “a personal opinion as to . . . the credibility of a
witness” or “the culpability of a civil litigant.” Utah R. Prof’l
Conduct 3.4(e).
20190867-CA 3 2021 UT App 35Bohman Aggregates v. Gilbert
¶5 Attorney Bohman never directly responded to the rule 3.4
concerns (instead arguing about the extent to which his personal
defense arguments could overlap with his co-defendants’
arguments). Attorney Jerome Romero (Attorney Romero), who
represented all Appellants except Attorney Bohman at trial,
joined the discussion, stating, as co-counsel with Attorney
Bohman, “We understand Rule 3.4.” 3
¶6 Although the trial court denied a motion to disqualify
Attorney Bohman from representing himself, during the motion
hearing it warned,
I’m also going to make a general caution to all
counsel in this case, particularly in as much as
issues of credibility have become a fairly
substantial focus in this matter. And that is a very
severe caution against any conduct by counsel that
would vouch for the credibility or suggest a lack of
credibility of any witness or party in the case.
Counsel may ask questions, but questions or
determinations of credibility are ultimately
questions for the jury. And if an attorney, in
argument, argues that “This witness should be
believed over some other witness” or “I believe this
witness” or “I’ve worked with this witness for
3. In their reply brief, Appellants contend that Attorney Romero
was actually referring to rule 3.7, which was also at issue in that
conference. While that may have been Attorney Romero’s
intention, that is not what the record reflects. But more
importantly, this distinction is irrelevant because all attorneys
are under the obligation to understand and abide by all the
standards contained in the Utah Rules of Professional Conduct—
including rule 3.4.
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years and he’s credible and you should believe him
because I believe him,” any conduct like that will
result in a mistrial. That is absolutely prohibited.
The court explained that the parties would be able to juxtapose
testimony and invite the jury to consider witness credibility but
reiterated that “counsel may not cross that line to express a
personal opinion as to the credibility of any witness.” The
attorneys did not object nor seek any clarification. Again, the
trial court repeated the warning: “And so it is abundantly clear,
if that happens, the Court will declare a mistrial.” Once more,
the trial court warned that such conduct “needs to be
significantly guarded against . . . [and] simply cannot occur.”
Finally, the trial court made clear that its instruction was “on the
record, [and] if that happen[ed], the consequences [would] be as
indicated.”
¶7 With the scene set, by both the Utah Rules of Professional
Conduct and the trial court’s unequivocal statements, Attorney
Bohman pursued his course of self-representation in a case
where he would also serve as a critical witness. He began his
opening statement boldly:
I’ve been living this case for three years, and I
think I have a hard time listening to it. I always
used to tell my clients when I practiced law full
time that I, as a lawyer, will never know the case as
well as they do. And having been sued for the first
time as an individual, I find that experience and
statement to be true.
He continued,
Let me be as clear as I can possibly be. At no time
was I ever an owner of the mining operations being
conducted at Bohman ranch. . . . [But] [m]y claim to
fame is that I live on the ranch. And given that [my
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brother] doesn’t live there, I became [his] eyes, I
became his ears, and I was asked to perform
specific tasks from time to time on his behalf,
which I did. As members of a family, you do things
for each other.
¶8 Attorney Bohman’s opening statement continued in
direct, first-person narrative. He stated that during negotiations
he meant to “move the ball forward in good faith” and that his
“concern was that [the other party] not misconstrue what [they]
were doing.” Attorney Bohman recounted conversations in
detail and described his thoughts and feelings about them with
phrases like, “to my shock and horror,” and, “I must have
looked like a deer caught in the headlights.”
¶9 Attorney Bohman also described his impression of the
negotiations by saying, “[I]t was at that point in time that I
realized I was probably dealing with an absolute crook.”
Attorney Bohman was referring to Gilbert, the only other
individual in the room during the crucial events—naturally, a
pivotal witness in the case. Speaking of Gilbert, Attorney
Bohman declared, “Either this man doesn’t understand his own
contract or he thinks I’m an idiot and that I’m going to rely on a
prior writing that would be wiped out.” Attorney Bohman
pressed forward comparing his and Gilbert’s versions of events
and providing legal analysis of Gilbert’s position. After all the
foregoing, opposing counsel finally objected, and the trial court
sustained the objection before opposing counsel even stated
grounds.
¶10 But Attorney Bohman was undeterred, asserting that
Gilbert started “to fabricate a false narrative” and that “what
he’s done through this period as he [weaves] his false narrative
is he started to—” Opposing counsel again objected, and the trial
court immediately sustained. After the trial court ruled on the
20190867-CA 6 2021 UT App 35Bohman Aggregates v. Gilbert
objection, opposing counsel clarified the objection’s basis—that
Attorney Bohman had given “argument and opinion.”
¶11 During an ensuing sidebar conference, the trial court
reiterated the instructions from the pretrial conference:
Expressions of your opinion, [Attorney] Bohman,
about the truth or falsity of statements made by
another party or another witness are not
appropriate. I’ve already made that very clear in
my instructions previously, and I will not permit
that kind of conduct.
If you want to state what you believe the facts are,
that’s fine. If you want to state what you believe
the other party may allege the facts to be, that’s
fine. But you may not characterize as “false” or
“fabricated” or other adjectives of that nature a
characterization of the opponent’s testimony. You
can articulate the facts, but you may not express
your opinion as to the credibility or believability of
any other witness or the facts that are going to be
presented by those witnesses. Those issues are
exclusively within the purview of the jury, and I
will not permit that conduct.
Attorney Bohman’s opening statement ended shortly thereafter.
¶12 Attorney Bohman’s closing argument was much the same.
He began by referencing his testimony on the stand but then he
launched into another direct, first-person narrative about
witness credibility. Attorney Bohman stated that “[A]t all times
[he] operated in good faith” and opined that, on the other hand,
Gilbert “was really trying to wipe out all the prior promises.”
Attorney Bohman said, “I assumed he was acting in good faith,
as I was acting in good faith,” which “consists of . . . notions of
20190867-CA 7 2021 UT App 35Bohman Aggregates v. Gilbert
honesty, truthfulness, genuineness, and a lack of deceit.” He
stated, “I wrote on the contract three words ‘subject to
addendum.’ It wasn’t Tweety Bird that wrote those, it wasn’t
Casper the ghost, it was me. This is my handwriting” and
Gilbert “was 4 feet away from me when I did it.”
¶13 Recounting part of Gilbert’s testimony, Attorney Bohman
said, “There’s no reason, as he’s testified to you, I would say
‘Oh, I’ve got to make a note to remember to write the
addendum.’” He continued, “It’s just a transparent lie. He
wanted to wipe out his prior promises, and he believed that if
those words weren’t initialed, then they didn’t mean anything.
He was wrong. And just in case he wasn’t wrong or was wrong,
he decided to make up a lie to create—”
¶14 Opposing counsel objected at that moment. The trial court
sustained the objection, and in yet another sidebar stated,
The rules of ethics prohibit any expression of
opinion on the credibility of any witness. And that
conduct is absolutely prohibited. You’ve been
warned about that before, and the Court will not
countenance that conduct. Those—those direct
statements are in direct contradiction of the order
of the Court. . . .
[T]he rules of ethics also prohibit expressing
testimony during argument, and you’ve been
doing that as well. And that’s inappropriate. You
can make comments on the evidence, but you may
not testify during your closing. . . .
You may not express as facts what will be the
equivalent of your testimony, and you may express
no opinion about the credibility of any other
participant in the proceedings . . . . And if any of
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those restrictions are violated, you’ll be barred
from making any further comments at all.
¶15 When Attorney Bohman asked if he could argue what his
testimony was, the trial court clarified,
You can say that your testimony was X, Y, Z but
you cannot testify from the podium. You cannot
say, “I was there.” You cannot say, “I did this.”
You cannot say, “I did that.” You can say, “The
testimony shows this” or “The testimony shows
that.” . . . And you may not present anything which
would be in the nature of testimony, and you may
not make any comment that attributes credibility
or lack of credibility to any other party or witness.
The trial court made the consequences clear: “[A]ny violation of
those restraints will result in your being barred from any further
comment in the proceedings.” The trial court then clarified for
the jury those statements that “are in the nature of or appear to
be testimony are not testimony, they are not evidence in these
proceedings, and are to be disregarded by the jury.”
¶16 Once the sidebar concluded, Attorney Bohman then
stated to the jury, “Getting back to the concept of good faith, the
mistake I made in my dealings, I think the evidence shows, is
that I treated . . . Gilbert as if he was an honest businessman.”
When opposing counsel objected, the trial court immediately
sustained the objection and terminated Attorney Bohman’s
closing statement. All told, opposing counsel objected four times
throughout Attorney Bohman’s opening and closing statements.
¶17 Following a jury verdict in Appellant’s favor, Appellees
moved for a new trial under Utah Rule of Civil Procedure
59(a)(1). In the motion, Appellees alleged, “From his opening to
his closing, [Attorney] Bohman serially and intentionally
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violated rule 3.4(e). Nearly his entire opening statement was
improper testimony. That opening included improper opinion
and commentary.” (Cleaned up.) Appellees further alleged that
“Attorney Bohman went off again in his closing, the entirety of
which was improper opinion and testimony.” The motion based
its request on allegations of improper testimony and improper
opinion.
¶18 On those same grounds, the trial court granted a new trial
and vacated the judgment:
[Attorney] Bohman in connection with both his
opening and closing statements was consistently
and egregiously in violation of Rule 3.4(e).
[Attorney] Bohman’s opening statement, for
example begins as a statement of his personal
knowledge and his personal experiences. There is
very little reference or suggestion at all as to what
the evidence will show in the case; rather there is
simply a direct presentation by [Attorney] Bohman
of his own personal expressions of his personal
knowledge relative to the case. The reason that that
conduct is proscribed by the rules is that it is
expressly inappropriate for an attorney to suggest
that he has personal knowledge that goes beyond
what the jury may understand or hear. When an
attorney does that, he compromises his role as an
attorney and crosses the line to the inappropriate
presentation of evidence. That line was crossed
repeatedly and consistently by [Attorney] Bohman
throughout his conduct when appearing as an
attorney in this case.
Not only were there inclusions of statements as
though from personal knowledge, but there were
statements as to the credibility of the witnesses
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setting forth in anticipatory strike against the
credibility specifically of . . . Steve Gilbert. That is
inappropriate. The Court finds that [Attorney]
Bohman’s opening statement was essentially and
almost in its entirety in violation of rule 3.4(e).
The Court also finds that the closing statement was
subject to the same problems as the opening.
Rather than being an argument suggesting a legal
principle and making reference to a particular
piece of evidence or material that had been
presented appropriately as evidence, [Attorney]
Bohman again engaged in simply a first person
narrative of the facts of the case suggesting his
personal knowledge.
The trial court then referenced its pretrial warning “that it would
consider a mistrial request if those rules were violated.” It also
said that because “[t]he Rule 3.4(e) issue was known by all the
parties” before trial, Appellees had not waived their opportunity
to request a new trial on these issues. The Appellees’ choice, the
trial court noted, “to desist from repeated objections” was
“strategically understandable.”
¶19 The trial court also took issue with Attorney Bohman’s
“physical appearance,” “demeanor,” “substantial emotion,” and
“variations in volume,” as well as the “tone of his comments,”
noting that these were “less than professional and detached” and
characterizing them as “demeaning,” “forceful,” “dismissive of
the arguments of others,” and “suggesting a superiority of his
knowledge.” In short, the court ruled that “[Attorney] Bohman’s
physical presence, when combined with his statements,
communicated . . . to the jury, in effect, ‘you don’t have to listen
to them because I was there and I know the truth.’” And, “that
essence, both by his physical presence, the tone, and nature of
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his presentation, and the substance of its content directly violates
the requirements of Rule 3.4(e).”
¶20 Based on the totality of the circumstances, the trial court
found that “the fairness of [the] trial ha[d] reasonably been
called into question.” And further, the trial court found “that it
[wa]s reasonably likely that a different result would have
occurred had those irregularities and improper conduct not
taken place.” The trial court also discussed “a statement made by
[Attorney] Bohman’s co-counsel, [Attorney] Romero, during his
own closing statement, wherein [Attorney] Romero suggested
that [Attorney] Bohman’s correction of testimony with respect to
the particular timing of an issue was based upon issues of
‘honesty’—that ‘that’s what an honest person does.’” The trial
court ruled that the statement constituted “improper vouching
for the credibility of a witness” and considered that statement in
light of the trial’s “greater context.”
¶21 The trial court granted a new trial and vacated the jury’s
verdict. Appellants now bring the instant interlocutory appeal.
ISSUE AND STANDARD OF REVIEW
¶22 When a trial court grants a new trial, “we will not reverse
absent a clear abuse of discretion by the trial court,” but “we
review the legal standards applied . . . for correctness,”
recognizing that “a trial court abuses its discretion if its decision
is premised on flawed legal conclusions.” State v. Boyer, 2020 UT
App 23, ¶ 18, 460 P.3d 569 (cleaned up); see also Goddard v.
Hickman, 685 P.2d 530, 532 (Utah 1984) (“A trial court has broad
latitude in granting or denying a motion for a new trial, and will
not be overturned on appeal absent a clear abuse of discretion.”).
20190867-CA 12 2021 UT App 35Bohman Aggregates v. Gilbert
ANALYSIS
¶23 Appellants contend that the trial court misinterpreted rule
3.4 and abused its discretion when applying that
misinterpretation to grant a new trial. To support this
contention, Appellants assert that rule 3.4 does not apply to
Attorney Bohman but that even if it did, he did not violate the
rule. We discuss rule 3.4’s relevant aspects in turn and then
review rule 59 of the Utah Rules of Civil Procedure.
I. Rule 3.4
¶24 The trial court granted a new trial based on Attorney
Bohman’s numerous and blatant rule 3.4 violations. See Utah R.
Civ. P. 59(a)(1) (allowing a trial court to grant a new trial for an
“irregularity in the proceedings of the court.”). But Attorney
Bohman contends that the trial court abused its discretion
because, in part, rule 3.4 did not apply to him as a pro se
attorney–litigant. Accordingly, we first review the trial court’s
interpretation that rule 3.4 applies to pro se attorney–litigants,
ultimately concluding that it does.
¶25 “We interpret a court rule in accordance with its plain
meaning, and our objective in interpreting a court rule is to give
effect to the intent of the body that promulgated it.” In re
Discipline of Brussow, 2012 UT 53, ¶ 14, 286 P.3d 1246 (cleaned
up); see also In re Discipline of Dahlquist, 2019 UT 15, ¶ 21, 443 P.3d
1205. While we understand the Utah Supreme Court’s
admonition that “no set of rules or guidelines can exhaust the
moral and ethical considerations that should inform a lawyer [as
to duty],” Burke v. Lewis, 2005 UT 44, ¶ 29, 122 P.3d 533 (cleaned
up), when interpreting these rules, we are “bound by the text of
the rule,” Strand v. Nupetco Assocs., 2017 UT App 55, ¶ 4, 397 P.3d
724. “[W]e look to the express language of the rule . . . [and] read
each term in the rule according to its ordinary and accepted
meaning.” See Drew v. Lee, 2011 UT 15, ¶ 16, 250 P.3d 48 (cleaned
20190867-CA 13 2021 UT App 35Bohman Aggregates v. Gilbert
up). “Further, we interpret the rule to give meaning to all its
parts, avoid construing the rule in a way that renders any
portion of it superfluous, and interpret the rule so as to maintain
its harmony with other court rules related to it.” State v.
Rothlisberger, 2006 UT 49, ¶ 21, 147 P.3d 1176.
¶26 Rule 3.4 governs fairness to opposing parties and counsel
and provides, “A lawyer shall not . . . in trial, . . . assert personal
knowledge of facts in issue except when testifying as a witness, or
state a personal opinion as to . . . the credibility of a witness.”
Utah R. Prof’l Conduct 3.4(e) (emphasis added). The rule
provides no exception for attorneys appearing pro se. Indeed,
the rules otherwise make clear that “[e]very lawyer is
responsible to observe the law and the Rules of Professional
Conduct.” Id. at Preamble: A Lawyer’s Responsibilities; see also
State v. Jones, 558 S.E.2d 97, 104 (N.C. 2002) (“[A]ttorneys
appearing before our courts are expected, at a minimum, to
conduct themselves in accordance with such rules. . . . [T]rial
judges have a . . . responsibility . . . to take appropriate action
against opportunists who purposely venture to violate
courtroom protocol.”).
¶27 Though no Utah caselaw addresses the subject directly,
other courts agree with our interpretation that the rules of
professional conduct and the associated “professional
responsibilities govern the conduct of attorneys whether they
represent themselves or others.” See Brunswick v. Inland Wetlands
Comm'n, 610 A.2d 1260, 1266–67 (Conn. 1992). For one thing, this
interpretation flows logically from the fact that “a pro se
lawyer/litigant does represent a client when representing himself
or herself in a matter.” See Runsvold v. Idaho State Bar, 925 P.2d
1118, 1120 (Idaho 1996) (cleaned up). And specifically, the
Connecticut Supreme Court has interpreted that state’s
substantively identical rule 3.4 and come to the same conclusion:
20190867-CA 14 2021 UT App 35Bohman Aggregates v. Gilbert
Rule 3.4 . . . contains no contextual
suggestion that it is applicable to an attorney only
when the attorney is representing a client and not
when he or she is acting pro se. Although some of
our attorney disciplinary rules apply only when a
lawyer is acting in a representative capacity . . .
there is no indication, either in the language of rule
3.4 or in the relevant commentary to the rule, that
the rule’s prohibitions are inapplicable when the
attorney is acting pro se rather than representing a
client.
. . . [T]he commentary to rule 3.4 states, the
rule is designed to promote “fair competition in the
adversary system by securing prohibitions against
destruction or concealment of evidence,
improperly influencing witnesses, obstructive
tactics in discovery procedure, and the like.”
Because the conduct proscribed by rule 3.4 is
incompatible with the principle of fair competition
that forms the basis of our adversary system of
justice, an attorney who acts in contravention of
the rule cannot justify that conduct on the basis
that it was intended to benefit himself or herself
rather than a client.
Somers v. Statewide Grievance Comm., 715 A.2d 712, 718 (Conn.
1998) (cleaned up).
¶28 Accordingly, we hold that rule 3.4’s relevant portions
plainly prohibit all attorneys, pro se or not, from (1) “assert[ing]
personal knowledge of facts in issue except when testifying as a
witness,” and (2) “stat[ing] a personal opinion” about any
witness’s credibility. See Utah R. Prof’l Conduct 3.4(e). We
discuss each prohibition in turn to determine whether Attorney
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Bohman’s actions violated rule 3.4 and finally evaluate whether
those violations warranted a new trial.
Asserting Personal Factual Knowledge
¶29 In interpreting rule 3.4, the trial court determined that
Attorney Bohman violated the rule by asserting personal
knowledge. But Appellants argue that interpreting rule 3.4 as
prohibiting pro se attorneys from asserting personal knowledge
of the facts fails to fulfill rule 3.4’s purposes and, thus, the rule
should not apply to Attorney Bohman. 4 We disagree. We reject
Appellants unduly narrow rule 3.4 interpretation and conclude
that interpreting the rule to apply to pro se attorney–litigants
actually supports the rule’s purpose. See supra ¶ 27.
¶30 The prohibition against attorneys asserting personal
knowledge of the facts carries one exception. As pointed out,
rule 3.4’s express language provides that a lawyer shall not in
trial “assert personal knowledge of facts in issue except when
testifying as a witness.” Utah R. Prof’l Conduct 3.4(e) (emphasis
added). Obviously, if a pro se attorney is testifying as a witness,
the pro se attorney may—indeed must—assert personal
knowledge of the facts, as all witnesses must testify on the basis
of their personal knowledge. Inversely, however, if an attorney,
pro se or not, is not testifying as a witness, the attorney must not
4. Appellants also argue that the trial court’s rule 3.4
interpretation raises constitutional concerns. However, this court
cannot identify anywhere in the record where Appellants argued
before the trial court that the state or federal constitutions
constrained rule 3.4’s interpretation. Appellants raised no
applicable constitutional argument below so they cannot raise it
now. See State v. Brown, 856 P.2d 358, 359 (Utah Ct. App. 1993)
(“[C]ourts will not consider an issue, including a constitutional
argument, raised for the first time on appeal . . . .”).
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assert personal knowledge of the facts. Thus, the rule’s plain
language supports applying it to pro se attorney–litigants: the
absence of any reference to pro se attorneys dictates that the rule
applies to all attorneys regardless of pro se status, and because
the rule includes a provision allowing attorneys to suggest
personal knowledge when testifying under oath on the stand,
the rule precludes all other exceptions. Unless testifying as a
witness, an attorney may not assert personal knowledge—not
during opening statement, not while examining witnesses, and
not during closing argument. 5
¶31 Rather than follow the rule’s plain language, Appellants
request that we adopt an interpretation from a case looking at an
entirely different rule—Utah Rule of Professional Conduct 3.7,
which generally prohibits attorneys from also acting as
witnesses. Specifically, Appellants rely on Beckstead v. Deseret
Roofing Co., 831 P.2d 130 (Utah Ct. App. 1992), which explained
that “[rule 3.7’s] prohibition against acting as a lawyer and a
witness in the same case . . . does not apply when the lawyer is
representing [her or] himself,” partially because the rule “does
not address that situation in which the lawyer is the party
litigant.” Id. at 134 (cleaned up).
¶32 In contrast, rule 3.4 already accounts for the fact that some
attorneys may also be witnesses in their own cases. Rule 3.4’s
prohibition against suggesting personal knowledge applies only
when that party is not “testifying as a witness.” Accordingly, a
pro se attorney–litigant may suggest personal knowledge when
under oath on the witness stand, when that attorney, like any
other witness, is subject to cross-examination by the opposition.
5. This interpretation also comports with the Utah Rules of
Evidence, which strictly govern evidence admission, including
witness testimony and statements made off the witness stand.
See, e.g., Utah R. Evid. 601–617, 801–807.
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But a pro se attorney may not assert personal knowledge while
previewing a case in opening statements, while questioning
another witness directly or on cross-examination, 6 or during
closing arguments, where opposing parties have no opportunity
to scrutinize that testimony before the jury. Any other
interpretation would allow “a form of unsworn, unchecked
testimony which tends to exploit the influence of the [attorney’s
role] and undermine the objective detachment that should
separate a lawyer from the cause being argued.” State v.
Thompson, 2014 UT App 14, ¶ 51, 318 P.3d 1221 (cleaned up). In
this sense, the exception—which allows pro se attorneys to
testify on their own behalf while on the stand—actually
reinforces the rule that a pro se attorney may not assert personal
knowledge at any other time because the rule has already built
in an escape-hatch for those pro se attorneys who, to testify,
must of necessity assert personal knowledge.
¶33 In the present case, the trial court found that Attorney
Bohman consistently and egregiously violated rule 3.4 during
his opening and closing statements. And, as a result, the court
characterized his message to the jury as essentially stating,
“[Y]ou don’t have to listen to [Appellees] because I was there
and I know the truth.” And we do not conclude that the trial
court clearly erred in finding that Attorney Bohman egregiously
violated rule 3.4 on numerous occasions. As one example,
during closing, Attorney Bohman stated, “I at all times operated
in good faith.” We have searched the trial transcript and failed to
find any remotely similar phrase in Attorney Bohman’s actual
testimony. We fail either because the phrase, or something like
6. For an example of this, see Holt v. Commonwealth, 219 S.W.3d
731 (Ky. 2007), where the prosecutor repeatedly asked leading
questions that implied to the jury that the witness had already
told the prosecutor that the defendant was guilty. Id. at 733–34.
20190867-CA 18 2021 UT App 35Bohman Aggregates v. Gilbert
it, does not exist or because he did not supply it to us. Either
scenario is problematic. In the event he failed to provide it, we
are unable to consider this as potentially justifying his words. Cf.
Horton v. Gem State Mutual of Utah, 794 P.2d 847, 849 (Utah Ct.
App. 1990) (“Absent the trial transcript, appellant’s claim of
error is merely an unsupported, unilateral allegation which we
cannot resolve.” (cleaned up)). But if he did not testify to that
effect on the witness stand, this example illustrates the problem.
Although we do not require a pro se party to recite a specific
talismanic incantation when previewing or referring back to
testimony during opening and closing statements, presenting
something new or different that was not elicited on the witness
stand becomes improper testimony not subject to oath or cross-
examination. See Thompson, 2014 UT App 14, ¶ 51.
¶34 We appreciate the burden placed on individuals who
must keep their roles of witness and attorney distinct. But
Attorney Bohman’s direct, first-person narrative, devoid of any
indication that he was merely referencing sworn testimony,
provided a sound basis for the trial court to find that Attorney
Bohman violated rule 3.4’s prohibition against asserting personal
knowledge. Accordingly, the trial court correctly interpreted rule
3.4. Having reviewed the record, we see no basis to conclude
that the trial court clearly erred in finding that Attorney Bohman
violated rule 3.4; nor do we conclude that the trial court abused
its discretion in deciding that these irregularities justified a new
trial under Utah Rule of Civil Procedure 59.
Credibility Comments
¶35 The trial court also found that Attorney Bohman violated
rule 3.4 by offering his personal opinion on witness credibility.
Attorney Bohman contends that the trial court abused its
discretion in that ruling because his statements did not actually
violate the rule. We disagree.
20190867-CA 19 2021 UT App 35Bohman Aggregates v. Gilbert
¶36 Rule 3.4 prohibits attorneys from offering “personal
opinion” about “the credibility of a witness.” Utah R. Prof’l
Conduct 3.4(e). Generally, no witness may comment on the
credibility of another witness. See Utah R. Evid. 608(a); Blackhawk
Townhouses Owners Ass’n v. J.S., 2018 UT App 56, ¶¶ 47–50, 420
P.3d 128 (“Asking a witness to comment on the veracity of
another witness is improper.” (cleaned up)); State v. Perea, 2013
UT 68, ¶¶ 37–39, 322 P.3d 624. Specifically, one witness may not
testify about another witness’s veracity on a particular occasion. 7
State v. Harmon, 956 P.2d 262, 271 (Utah 1998) (“[O]ne witness
may not testify as to the credibility of statements made by
another person on a particular occasion.”); State v. King, 2010 UT
App 396, ¶ 44, 248 P.3d 984. The pro se status of an attorney–
litigant provides no license to depart from, or to hedge, this
general rule. 8 Although attorneys may argue that a jury should
question a witness’s veracity “if it is a conclusion that the jury
could have reasonably inferred from the evidence[,] . . . such
comments are improper when the jury could reasonably believe
that the [attorney] was indicating a personal belief in the
witness’s credibility.” State v. Thompson, 2014 UT App 14, ¶ 52,
318 P.3d 1221 (cleaned up). So, the question is whether Attorney
Bohman’s words actually constituted impermissible personal
opinion.
¶37 Appellants argue that Attorney Bohman’s comments were
not expressions of personal opinion but deductions based on the
7. Indeed, even the trial judge is precluded from commenting on
“the credibility of a witness’s testimony.” See State v Taylor, 2005
UT 40, ¶ 22, 16 P.3d 360.
8. Despite significant effort, we have been unable to identify a
single case discussing whether a pro se attorney–litigant may
comment on credibility.
20190867-CA 20 2021 UT App 35Bohman Aggregates v. Gilbert
evidence. Appellants rely on multiple cases in which courts have
reviewed similar contested statements in context and
characterized the comments as permissible statements about the
evidence presented, in that the statements simply highlighted a
reasonable inference that the jury could draw from the evidence
presented. See, e.g., State v. Bakalov, 1999 UT 45, ¶ 57 n.9, 979 P.2d
799 (agreeing with the trial court that rather than providing a
personal opinion, the prosecutor merely argued the evidence
and that it was so compelling that the jury could come to a
particular conclusion); State v. Clark, 2014 UT App 56, ¶¶ 36–39,
322 P.3d 761 (holding that, despite “suggesting that [a
defendant] had a motive to lie and that [the defendant’s]
explanations were a ‘fabrication,’ an ‘absurdity,’ ‘convoluted,’
and ‘tortured,’ the prosecutor disclosed only what the jury could
have reasonably inferred from the evidence” (cleaned up)); State
v. Cummins, 839 P.2d 848, 852–54 (Utah Ct. App. 1992) (holding
that “the prosecution’s statements were no more than reasonable
inferences based upon the demeanor of the witness and the fact
that, before testifying, the witness was required to take an oath
of honesty”).
¶38 We of course agree that attorneys may make permissible
statements based on the evidence, but they may not simply voice
a personal opinion that is untethered from the evidence. Thus,
the fact that a deduction might flow from the opinion, or that the
evidence may support a similar deduction, is not the point. See,
e.g., State v. Spencer, 49 P. 302, 305 (Utah 1897) (determining that
a prosecutor’s statement, “I have been convinced of his guilt”
was improper); State v. Ringstad, 2018 UT App 66, ¶¶ 65–66, 424
P.3d 1052 (concluding that a prosecutor’s statement that “I think
that’s despicable” constituted a personal opinion); see also Harne
v. Deadmond, 1998 MT 22, ¶ 9, 954 P.2d 732 (holding that
counsel’s sharing a personal experience he had with the
defendant, and in essence “testifying” to his character, was
improper). Here, the trial court determined that Attorney
20190867-CA 21 2021 UT App 35Bohman Aggregates v. Gilbert
Bohman’s statements constituted improper personal opinions.
We agree. Again, we need not define particular magic words
that designate a statement as a permissible deduction from the
evidence as opposed to an impermissible opinion that is
untethered from the evidence, but here, no linguistic cues
suggest these statements composed deductive reasoning. 9
¶39 During Attorney Bohman’s opening statement, while
sharing his narrative, he said, “It was at this point in time I
realized I was probably dealing with an absolute crook.” Phrases
like “I realized,” “I was probably,” and “absolute crook” all
indicate to us that Attorney Bohman propounded his personal
opinion. Indeed, absent some objective way for the jury to define
an “absolute crook,” characterizing another witness as such is
nothing but an opinion.
¶40 In closing, Attorney Bohman stated, “[T]he mistake I
made in my dealings, I think the evidence shows, is that I treated
. . . Gilbert as if he was an honest businessman.” Here, phrases
like, “mistake I made,” “I think the evidence shows,” and “as if,”
all indicate that Attorney Bohman shared a personal opinion.
While the words, “the evidence shows,” present no problem, we
can think of no clearer words than “I think” to indicate that the
speaker shared an opinion. Such words necessitate that
whatever follows is the attorney’s own personal opinion and not
merely a deduction supported by the evidence. The trial court
9. Appellants also assert that Attorney Bohman’s statements
were not improper and that his stylistic choices in his opening
and closing statements—namely the direct, first-person narrative
style—constituted, at most, technical violations of rule 3.4.
However, as explained, Attorney Bohman’s behavior violated
rule 3.4, and language matters when a party is attempting to
comply with rule 3.4(e)—particularly when acting in tandem
roles as attorney and party.
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saw it no differently. When Appellees objected to this statement,
it sustained the objection and, making good on its sidebar
warning, terminated Attorney Bohman’s closing argument. See
supra ¶ 16.
¶41 We need not rehash the other examples from trial. In the
trial court’s order granting a new trial, the court recounted that
Attorney Bohman made “statements as to the credibility of the
witnesses setting forth in anticipatory strike against the
credibility specifically of . . . Steve Gilbert.” We see no basis to
second-guess the trial court’s determination that Attorney
Bohman violated rule 3.4’s prohibition against commenting and
opining on witness credibility. Partly on this basis, the court
granted a new trial because “the fairness of [the] trial had
reasonably [been] called into question” and because “it is
reasonably likely that a different result would have occurred had
those irregularities and improper conduct not taken place.” See
generally Utah R. Civ. P. 59. Accordingly, we hold that the trial
court did not abuse its discretion in relying on these grounds in
granting a new trial under rule 59. 10
10. Appellants also contend that the trial court erred in ruling
that Attorney Romero vouched for Attorney Bohman and
thereby violated rule 3.4. Although rule 3.4 does prohibit
attorneys from expressing personal opinions regarding witness
credibility, see Utah R. Prof’l Conduct 3.4(e), we believe the trial
court misperceived Attorney Romero’s statement. Attorney
Romero’s full statement reads, “[W]hen you find out that you
were wrong, you correct the record. That’s what an honest
person does, and that’s exactly what Brent does.” The trial court
concluded that this statement constituted inappropriate
vouching. We disagree. In context, Attorney Romero’s statement
is devoid of the problematic features attendant to Attorney
Bohman’s statements; we view this statement in context as a
(continued…)
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II. Utah Rule of Civil Procedure 59
¶42 Utah Rule of Civil Procedure 59 section (a)(1) allows the
court to grant a new trial based on an “irregularity in the
proceedings of the court, jury or opposing party, or any order of
the court or abuse of discretion by which a party was prevented
from having a fair trial.” Utah R. Civ. P. 59(a)(1). Rule 59(d)
provides that “the court, on its own, may order a new trial for
any reason that would justify a new trial on motion of a party”
and that “the court may grant a timely motion for a new trial for
a reason not stated in the motion.” Id. R. 59(d). This rule
therefore explicitly allows the court to grant a new trial sua
sponte, or for reasons other than those raised in the motions—as
long as it provides the reasons. See id. And importantly, nothing
prevents a court from viewing a violation of the Rules of
Professional Conduct as the basis for an irregularity in the
proceedings warranting a new trial under rule 59.
¶43 In addition to arguing that the trial court misinterpreted
rule 3.4 in finding that violations of that rule presented an
irregularity justifying a new trial, Appellants also contend that
Attorney Bohman’s statements could not have been prejudicial
because other evidence on the record would have been more
damaging and because the jury was necessarily aware that
Attorney Bohman, as a party, had personal factual knowledge.
(…continued)
deductive statement or “a conclusion that the jury could have
reasonably inferred from the evidence.” See State v. Thompson,
2014 UT App 14, ¶ 52, 318 P.3d 1221 (cleaned up). However,
because Attorney Romero’s statement does not appear to be the
straw that broke the camel’s back in justifying a new trial, we do
not believe the trial court’s misstep on this issue affected the
outcome. The trial court justifiably granted a new trial under
rule 59 based on the other irregularities it identified in its ruling.
20190867-CA 24 2021 UT App 35Bohman Aggregates v. Gilbert
¶44 However, we conclude that the trial court appropriately
considered the case’s circumstances “as a whole.” See State v.
Troy, 688 P.2d 483, 486 (Utah 1984); see also State v. Lomu, 2014 UT
App 42, ¶ 22, 321 P.3d 235. Based on the totality of the
circumstances, the court granted a new trial because the trial’s
fairness “ha[d] reasonably been called into question” by the rule
3.4 violations that the court “specifically observe[d] during the
trial,” making it “reasonably likely that a different result would
have occurred had those irregularities and improper conduct not
taken place.” As explained, we conclude the trial court correctly
interpreted rule 3.4 and correctly found that Attorney Bohman
violated this rule. We also have no doubt that Attorney
Bohman’s consistent, egregious violations not only called into
question, but in fact impacted, the trial’s outcome. But even if we
had such doubts, where we have “no way of knowing precisely
what effect [Attorney Bohman’s] remarks [or involvement with
the case] had on the jury . . . , we must give great deference to the
trial court, which is in a much better position than this court to
evaluate the parties’ conduct, the context in which the
irregularity occurred, and the jury’s reaction to the statement.”
See Child v. Gonda, 972 P.2d 425, 430 (Utah 1998) (cleaned up).
Accordingly, the trial court properly exercised its discretion to
grant a new trial here. 11
11. Although the trial court instructed the jury that Attorney
Bohman’s remarks were not evidence, “curative instructions are
not always sufficient to avoid the potential prejudice,” and we
will not disturb the trial court’s estimation about whether its
curative instructions sufficed. See State v. Wetzel, 868 P.2d 64, 69
(Utah 1993); see also State v. Bujnowski, 532 A.2d 1385, 1388 (N.H.
1987) (“[S]uch intentional, repetitive misconduct may well have
rendered the court’s curative instructions meaningless.”).
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CONCLUSION
¶45 The trial court properly interpreted rule 3.4, and did not
exceed its discretion in granting a new trial based on the impact
of Attorney Bohman’s many rule 3.4 violations.
¶46 Affirmed.
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