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  • Writer's pictureAlexander J. Kemeny

A Cautionary Tale to Avoid Witness Coaching - A Case Dismissed and Sanctions Imposed

The Appellate Division upheld the dismissal of a couple’s trip and fall lawsuit claim and an order for the plaintiffs' counsel to pay over $20,000 to the defense after the plaintiff’s attorney was caught on camera coaching one of the plaintiffs during a recess in a virtual trial. The case, Hernandez v. La Fortaleza, Inc., 2024 WL 65217 (N.J. Super. Ct. App. Div. Jan. 5, 2024), serves as a cautionary tale to attorneys and litigants to avoid witness coaching.


During the virtual trial, the plaintiff, Siria Hernandez, was called as the first witness. The trial judge instructed her that she should be alone in the room from where she was testifying, except for her husband who could in the room with her. When Hernandez began having difficulty manipulating an on-screen exhibit, the trial was recessed for lunch and the judge told Hernandez's attorney to resolve the issues with the exhibit.


Defense counsel objected and stated that “on the critical issue of liability of this nature, no coaching is tolerable, zero coaching".” The trial judge then reiterated his instructions to the plaintiffs' attorney. However, during the recess, a conversation between Hernandez, Pereyra, and their attorney was recorded. The defense counsel objected about coaching again and advised that the microphone for plaintiffs’ attorney was on during the recess and that he had listened to the plaintiff's attorney coaching Hernandez with her husband’s assistance and requested a mistrial. The plaintiffs' attorney admitted to the judge that he had shown the witness the scenario by moving the cursor along the exhibit.


The trial judge ultimately concluded that she was compelled to declare a mistrial. In her written decision, the trial judge explained:


The directive from [the witness’s] trial attorney was clear: "this is where you fell." The directive was not for [p]laintiff to testify as to "where you know that you fell or answer that you do not know." The directive was to create a falsity and commit fraud on this court. Such is not tolerable. The bell cannot be unrung; [p]laintiff[s'] testimony will be forever tainted by the directive of [p]laintiff[s'] trial counsel.


As a result, the trial judge granted a mistrial and sanctioned plaintiffs’ counsel by ordering him pay $20,640 to the defense for attorney’s fees and costs incurred by the defense for trial and the motion for a mistrial.


The Appellate Division affirmed the dismissal of a couple's claim and the award of legal fees. In it’s decisions, the Appellate Division panel of Judges Jessica Mayer and James Paganelli concluded that there was “adequate, substantial, and credible evidence” to support the trial judge's finding that the plaintiffs and their attorney committed a fraud on the court. The appellate panel explained that while a dismissal with prejudice is a “drastic remedy,” there was an adequate basis to support the trial judge’s decision. The Appellate Division found that the plaintiffs and their attorney were “willing participants in a scheme to provide false testimony in an ongoing trial” and share responsibility for the fraud. Moreover, the Appellate Division found that a dismissal of the case with prejudice served the public interest by warning litigants and their attorneys that they risk a dismissal of their case if they commit a fraud on the court.

“The urge to discuss trial testimony with witness during a break can be tremendous; however, it is an urge that must be resisted,” Alexander J .Kemeny stated upon learning of the recent decision. “The Court Rules prohibit attorneys from discussing trial testimony with their client’s during a break in the testimony so as to prevent potential coaching. Witnesses must be prepared prior to trial.”




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