Commission on Law & Technology Leading Practices

Lawyer’s Boasting Causes Judge to Overturn Verdict

BY MOLLY DIBIANCA, ESQUIRE

Bragging may seem like an inherent part of the legal profession — it is, after all, a profession involving wins and losses. But, as a recent case from California shows, lawyers can face significant consequences when their boasting goes too far.

California lawyer Robert McKenna III represented a gastroenterologist in his defense of a malpractice action. The physician, Dr. Essam Quraishi, was alleged to have caused the death of Enrique Sanchez, who had been admitted to the hospital for abdominal pain from pancreatitis. Dr. Quraishi inserted a feeding tube that accidentally pierced the patient’s colon, which, according to the Sanchez family, led to his death. The perforated colon was listed as the cause of death on the death certificate.

At trial, McKenna argued that Sanchez died from other errors made by hospital staff. He called the lawsuit a form of “extortion,” encouraged the jury to ignore the death certificate, and took aim at what he called the “personal-injury industrial complex.”

McKenna’s defense was successful — the jury returned a verdict in favor of Dr. Quraishi in less than 30 minutes.

McKenna returned to his office, where he gathered with colleagues and invited his co-counsel to ring a “victory bell.” Someone recorded a video of the celebration, which included speech by McKenna in which he said that the case involved, “a guy that was probably negligently killed, but we kind of made it look like other people did it.” He mentioned the death certificate and the testimony of the coroner, bragging that they’d overcome that evidence with an ultra-quick defense verdict.

The firm posted the video to its social media page but removed it after receiving negative comments and significant backlash.

Upon a motion by the plaintiffs, the trial judge vacated the verdict and ordered a new trial. Although there were several bases for that decision, the judge specifically cited McKenna’s comments as “extremely important” and stated, “I think I have to protect the system and say plaintiffs deserve a new trial.” The judge went on to say:

When he says on video a “guy was probably negligently killed,” probably is more likely than not. Then he goes on to say, “But we kind of made it look like other people did it.” … That seems like an admission of negligence. Seems like an admission the plaintiff should have prevailed.

The lesson here feels almost too obvious. Lawyers who brag to their colleagues in a recorded speech that they beat the system by shifting blame should consider the implications of their comments prior to engaging in this type of “bragging.” It is, of course, exciting to prevail at trial. It is exciting to obtain a victory for one’s client. But to openly state that you secured that victory by shifting blame away from your guilty client does seem to cross a line, to put it mildly.

Lawyers should take every precaution whenever they talk about their cases and clients. There are real risks to both the lawyer’s practice and reputation as evidenced by the case of Mr. McKenna.

Molly DiBianca is the Managing Partner of the Wilmington office of Clark Hill, PLC, where she litigates on behalf of businesses and employers throughout the State. She can be reached at mdibianca@clarkhill.com.