Five years ago, the COVID-19 pandemic had the world twirling off its bearings, but “Zoom” became a verb and that helped some.  Video conferencing not only became a way to stay connected to friends and family, it became a lifeline that allowed lawyers to continue to take depositions, appear for oral arguments, and even conduct trials.

Remote appearances are so commonplace now, it is easy to assume that everyone knows the rules about what to do and what not to do.  That the days of a lawyer having to declare that “I am not a cat” are long behind us.

Yet, people are people, and mishaps still occur.  Today’s case is a little old (January 2024), but cautionary tales remain evergreen.  Hernandez v. La Fortaleza, Inc., No. A-0367-22, 2024 WL 65217, 2024 N.J. Super. Unpub. LEXIS 22 (N.J. Super. Ct. App. Div. Jan. 5, 2024), involved testimony during the virtual trial of a slip-and-fall matter, but the mistakes just as easily could have occurred during a remote deposition (we hope, never a virtual trial) in a pharmaceutical or medical device lawsuit.

The plaintiff was called as the first witness, and on direct was asked to show on a photograph the location where she supposedly had fallen. 

She provided a vague verbal answer and fumbled a bit with her computer’s cursor, and that seems to have resulted in some off-camera prompting by her husband. The court admonished the husband to remain quiet and visible to the camera at all times. 

The trial then broke for lunch.  The court instructed plaintiff’s counsel that he could take the time to straighten out the exhibit and how to use the cursor, but warned the husband not to say anything.  Plaintiff’s counsel had agreed that he would not talk to plaintiff “about her testimony at any time during the testimony, even if” the court broke for lunch, and defense counsel also reminded everyone there should be “zero coaching” during the break.

You know what occurred next:  The plaintiff’s attorney proceeded to coach his witness − pretty blatantly.   

As overheard by the court’s clerk and captured by the court’s recording system:

[Attorney]: This is the important part of the case. You show this picture, okay? Okay? and I’m going to say, I don’t know if we got this far already but do you recognize this picture? Yes. This side of the restaurant? Does it show – does it fairly and accurately show the way the restaurant looked on the day that you fell? Yes. You must say that or the picture cannot be good. Okay? So, I want you – and the answer has to be, yes, because if you say, no, we can’t do it. But you will say the same thing, I’m going to ask you the same question later.

Anyway, okay. Do you see – do you see the bench that you were going to at the time you fell? You’re going to answer, yes, right. And I will say to you, I’m going to move the cursor – and I will say I’m going to move the cursor. You tell me where is the bench? So, when I get up here, just, right there. Okay? The bench, right next to the lady. Okay? Okay.

Now in this picture, do you see where you fell and I’m going to put it right where the – where the bench – from where the bench it, where did you fall?

I will move the map. It’s out of the (indiscernible). So, after we identify the bench, I’m going to put the [cursor] right here now and say, do you see the area where you fell? Yes. Okay. Now, how do I have to move the – you – because it has to be her voice. How do I move the cursor to find the place where you fell?

So you should —

[Husband]: Back.

[Attorney]: Okay. So, down, right, like that?

[Attorney]: So, you say, move down. So, I’m going to move it, move it, move it. You have to tell me when to stop. Right there, right? Okay. How about this distance from the curb? Would it be right this way or further here? It would be in the middle?

[Husband]: Yeah.

[Attorney]: Okay. So, we’re going to – first we find the bench. That’s the easy part. Then I’m going to say, okay, I’m going to put the cursor right in front of the bench. Now, tell me how to move the cursor to show how you fell and what you would have to say, you have to move – you could either say down or to the camera, okay, which you prefer.

[Plaintiff and husband speaking in Spanish].

[Attorney]: Okay. So, you’re saying down? So, I’ll say, okay, I’m going to start to move it down and tell me when to stop. I’m going to go down, down, down, down, down.

[Plaintiff]: Stop.

Not surprisingly, the judge concluded that a mistrial was required, and later dismissed the complaint with prejudice and ordered plaintiff’s counsel to pay the fees and costs of the trial and the motion to dismiss.

Because of the coaching, “[t]he well of information that could be presented to the jury has been forever poisoned. There is no way to sufficiently determine that [p]laintiff can testify, especially considering that [p]laintiff had no recollection of her own fall and her attorney invited her to perpetuate a falsity at his direction to create an issue of liability.”  Even worse, the coaching came immediately after admonitions to plaintiff’s counsel and her husband.

Not content to let a bad situation be, plaintiff and her counsel decided to make it worse:  They filed an appeal arguing that there had been “no fraud on the court” and that the sanction of dismissal was “too severe.”

Was there a fraud on the court?  Check. 

A fraud on the court occurs

“where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”

2024 WL 65217 at *5. 

In this instance, both the plaintiff’s attorney and the husband “sentiently set in motion” a scheme by directing plaintiff to say where the accident had occurred when she had no independent recollection.

Was the dismissal sanction too severe?  Nope.

Although dismissals with prejudice are a drastic remedy to be used “only sparingly” the wrongfulness of the coaching was clear, the plaintiff and her husband were “willing participants” in the wrongful conduct, the coaching “poisoned” and “tainted” the judicial process, and no lesser sanction could undo the harm caused.

The ethical violations came to light in Hernandez due to a technology mishap, which makes us wonder how much other coaching goes on without notice.  To help guard against bad actors on the other side, our Remote Depositions in MDLs 2.0 post can help point you to some best practices.  For best practices concerning conversations with witnesses during breaks, see our Depositions – When Can You Talk To Your Own Witness? post.