Malpractice - Should smell of alchohol on lawyer's breath be admissible?
The Iowa Supreme Court has ruled that an appellate court correctly reversed a malpractice verdict where there was no evidence that the lawyer gave a subpar performance but the jury was allowed to infer that he was impaired based on testimony that his breath smelled of alcohol during trial (Tim McCandless Inc. v. Yagla, Iowa, No. 09-1738, unpublished, 2/18/11).
The court declared that all the allegations of negligence – not just the two tainted specifications identified by the appellate court – should be remanded for a new trial. The inadmissible alcohol-smell evidence was used to specify all the listed grounds for negligence, the court said, and may have affected each jury instruction.
Clients sued their lawyer for malpractice, claiming that he failed to defend them properly in a civil matter because he had been drinking during the trial. Specifically, they alleged the lawyer: (1) failed to designate or offer expert testimony; (2) did not present available favorable evidence; (3) did not sufficiently prepare witnesses; (4) failed to undertake adequate preparation for trial and (5) allowed improper evidence to be presented. Several witnesses were allowed to testify that they had smelled alcohol on the attorney’s breath, and the jury ended up awarding the clients more than $85,000.
The court of appeals reversed and remanded, finding that the evidence concerning the smell of alcohol on the attorney’s breath was not relevant, even in a limited way, to prove the plaintiffs’ claims of malpractice. That court said there was no proof that the attorney was impaired while litigating the client’s case, much less that he did not perform competently. Instead, the court said, the plaintiffs left the jury to speculate that the smell of alcohol on the attorney’s breath translated into a breach of applicable standards of care.
On remand, the appellate court said, a new trial was required only on the third and fourth specifications of negligence: the lawyer’s alleged failure to adequately prepare witnesses and his alleged failure to adequately prepare for trial. The Supreme Court agreed with the reversal and remand but ordered retrial on all five allegations, explaining that the tainted breath evidence may have affected each one of the jury instructions because it was used to support each count.
The trial court in a malpractice action should not have allowed evidence that the attorney’s breath smelled of alcohol during the trial of the client’s underlying case, the Iowa Court of Appeals decided Nov. 24 (Tim McCandless Inc. v. Yagla, Iowa Ct. App., No. 09-1738, 11/24/10).
Shortly after the trial ended in a money judgment against the attorney’s clients, the attorney entered a substance abuse treatment facility. Having learned of the alcohol treatment from the attorney’s law partner, the clients sued him for malpractice, claiming that he mishandled the litigation. In the malpractice case, several witnesses testified to the smell of alcohol on the attorney’s breath during the underlying trial.
Reversing and remanding for a new trial in the malpractice action, the court of appeals held that evidence concerning the smell of alcohol on the attorney’s breath was not relevant, even in a limited way, to prove the plaintiffs’ claims of malpractice. The plaintiffs admittedly presented the disputed evidence to show that the attorney was impaired, yet no witness testified to impairment as a result of alcohol, wrote Judge Anuradha Vaitheswaran for the court.
There was no proof, the court emphasized, that the attorney was “under the influence” while litigating the client’s case, much less that he was incapable of incompetently performing his services as a result. Instead, the plaintiffs left the jury to speculate that the smell of alcohol on the attorney’s breath translated into a breach of applicable standards of care, Vaitheswaran said. Accordingly, the evidence of alcohol smell on his breath was irrelevant, and its admission amounted to an abuse of discretion, the court declared.
Even if the evidence was marginally relevant, the court continued, it was unduly prejudicial in the absence of evidence showing impairment, as the testimony generated strong hostility toward the attorney in the malpractice trial.