The Consequences of Coaching Your Witness During Trial

The case of Hernandez v. La Fortaleza, Inc., 2024 N.J. Super. Unpub. LEXIS 22 (App. Div. Jan. 5, 2024) is a lesson as to why counsel should not coach their witness during trial.  This case involved a slip and fall accident in which the plaintiff Hernandez claimed that she fell on an uneven raised defect on the property of defendant La Fortaleza.  The case proceeded to trial via a virtual trial where, on a lunch break, the plaintiff’s attorney coached the witness as to her testimony. 

Plaintiff Hernandez was the first witness at the virtual trial.  The trial court judge told her that she had to be alone and on her own while she testified, except that her husband could be in the room.  During her direct testimony, her attorney showed her a photograph of the defendant restaurant and the area where the fall occurred.  She was trying to explain in her testimony where the fall occurred in the photograph.   The plaintiff’s husband was in the room but the judge admonished him that he had to remain quiet while she was testifying.  The plaintiff’s attorney explained to the Court that the plaintiff was having trouble manipulating the curser on the screen.  Therefore, the Court recessed the trial for lunch and instructed Mrs. Hernandez’s attorney to straighten out issues with the exhibits and utilization of the curser.

Defense counsel objected and claimed that, on the critical issue of liability, no coaching would be tolerable.  The trial judge restated her point to the plaintiff’s attorney that no one else can be in the room but plaintiff’s husband and that her husband must be visible behind her but cannot speak until it is his opportunity to testify.

Unfortunately for the plaintiff, during the recess, the conversation between the plaintiff, her husband, and her attorney was recorded.  In this recorded conversation, the attorney coached the plaintiff as to her testimony, telling her how she should respond to his questions and how she should testify as to where she fell.  After the recess, defense counsel continued the objection about coaching and advised the Court that plaintiff’s attorney’s microphone was on during recess and he listened to the attorney coaching the witness with the witness’s husband.  Defense counsel requested that the Court grant a mistrial. 

The judge polled the jurors and made certain that they had not overheard the recess conversation.  She concluded that the jury itself was not tainted.

The next day, defense counsel renewed his request for a mistrial or a dismissal of plaintiff’s complaint with prejudice.  The trial judge listened to the recording and concluded that the plaintiff’s attorney, despite being warned about coaching, had coached the plaintiff and directed her to testify as to where the slip and fall occurred.  Hence, the trial court judge felt that she was compelled to declare a mistrial.  The trial court judge ordered that plaintiff and/or their counsel reimburse the Court for the cost of the interpreter and court services.  The judge also permitted defendant to file a motion for dismissal with prejudice.

The defendant did file such a motion and the judge entered an order dismissing plaintiff’s complaint with prejudice.  She based it in part on the transcript of the conversation, as well as the certification of two bilingual paralegals from defense counsel’s office who heard the recess conversation.  One of them heard plaintiff state that it had been so long she didn’t remember where she fell.

In granting the defendant’s motion to dismiss the complaint with prejudice, the judge found as follows:

“The conduct of the attorney here to invite a client to state that an accident occurred in a particular place when she had no independent recollection to resolve the issues of liability where she was the only witness to the fall itself introduces prejudice too great to present to the finder of fact.”

Plaintiff appealed the dismissal.  Plaintiff argued that the trial judge made a mistake in the exercise of her discretion because there was no fraud on the Court and the sanction of dismissal was too severe.  However, the Appellate Division agreed with the trial court’s decision.

The Appellate Division noted that plaintiff’s husband failed to comply with the judge’s instruction on coaching Hernandez and, further, the plaintiff’s attorney after indicating he would not talk to plaintiff about her testimony at any time during the testimony, even during a lunch break, proceeded “to perpetuate a falsity” by directing the plaintiff to create an issue of liability by “stating that an accident occurred in a particular place when she had no independent recollection.”

While the Appellate Division found that a dismissal with prejudice was a drastic remedy, to be employed “only sparingly,” it found that the trial court did not abuse its discretion in dismissing this lawsuit.  The Court found that the plaintiffs shared the blame and the fraud because they received instructions from the judge concerning coaching.  Instead of listening to the judge, the plaintiffs willingly participated in a scheme to provide false testimony in an ongoing trial.  Based upon this falsified testimony, the Appellate Division found that the ultimate sanction of dismissal with prejudice was merited. 

Further, the Court found that the public interest was served by a dismissal with prejudice.  It noted that “[a] misrepresentation to a tribunal is a most serious breach of ethics because it affects directly the administration of justice.”  This dismissal warns plaintiffs and their attorneys that “their behavior will not be tolerated and that their conduct was so egregious as to cause them to suffer a drastic remedy – the loss of their cause of action.”  The Appellate Division further noted that “it informs other litigants that they risk dismissal if they commit a fraud on a court.”

Thus, the trial court’s decision was affirmed and the dismissal was upheld by the Appellate Division.

Tags: dismissal, slip and fall, testimony