California Landmark Cases on Attorney Misconduct
Under Code of Civil Procedure section 657, subdivision (1), "irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial" is ground for a new trial.
Misconduct of counsel may be an irregularity in the proceedings that is grounds for a new trial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870.)
"An overt act of the . . . adverse party, violative of the right to a fair and impartial trial, amounting to misconduct, may be regarded as an irregularity." (Gray v. Robinson (1939) 33 Cal. App. 2d 177, 182, 91 P.2d 194.)
Improper argument to the jury is a form of attorney misconduct. ( City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870; see also Malkasian v. Irwin (1964) 61 Cal.2d 738, 747 urging facts not justified by the record or suggesting the jury may resort to speculation; Hoffman v. Brandt (1966) 65 Cal.2d 549, 552, 554, appeal to sympathy, reference to insurance; Stone v. Foster (1980) 106 Cal. App. 3d 334, 355, appeal to prejudices of jury.) As with other forms of misconduct, failure to object to improper argument constitutes a waiver unless the misconduct was so egregious it could not be cured by an admonition. (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 609-610.)
However, to justify a new trial it is not enough to simply show an irregularity or error; prejudice must be shown as well. (See, e.g., Osborne v. Cal-Am Financial Corp. (1978) 80 Cal. App. 3d 259, 265-266.) "The trial court is bound by the rule of California Constitution, article VI, section 13, that prejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error." (Ibid.)
Article 6, section 13 of the California Constitution reads: "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."
An appellate court reviewing an order denying a new trial must review "the entire record, including the evidence, so as to make an independent determination whether the error was prejudicial." ( City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 872.)