In Jefferson v. Eggemeyer (2015-SC-625, rendered April 27, 2017), the Kentucky Supreme Court’s Justice Keller considered the circumstances under which it is appropriate for an appellate court to order a new trial. CR 59.01 determines that a new trial may be granted for irregularity in court proceedings, in an order of the court, or an abuse of the trial court’s discretion, any of which prevents a party from having a fair trial; misconduct of the prevailing party or his or her attorney; or errors of law at trial that are objected to by the party seeking relief.
In Jefferson, the Supreme Court, in reversing a decision of the Court of Appeals that had reversed the trial court’s denial of a motion for new trial, found that the trial court had acted within its discretion in finding that there was a fair trial despite misconduct from the prevailing party and his attorney. The attorney had presented new theories and defenses during his opening statement and closing argument at a second trial of the case in contravention of a pretrial order of the trial court. Opposing counsel requested that the court admonish the jury after one instance of misconduct, which the trial court did. Because juries are presumed to follow an admonition of the trial court to disregard a statement of a party or counsel, such an admonition (even if given the day after the objectionable conduct) cures the error unless the argument was so prejudicial in nature that it seems that the admonition could not cure it. The Supreme Court did not perceive from the record that misconduct had “permeated” the trial, and recognized that the trial court had broad discretion to determine whether the parties received a fair trial despite misconduct of a party or counsel.
The decision also contains a lengthy discussion of the appropriateness of contempt sanctions (both civil and criminal) against a party.
The decision became final in late May and was designated for publication in the South Western Reporter.
NOTE: Note: The foregoing post includes commentary reprinted from the forthcoming 2018 supplement to 7 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2017 Thomson Reuters. For more information about this publication click here.
David Kramer is a Partner and Chair of the Litigation Section in the law firm of Dressman Benzinger LaVelle psc, with offices in Cincinnati, Ohio, and Crestview Hills and Louisville, Kentucky.
