This column discussed this subject almost 20 years ago (NYLJ April 7, 1999), but two recent decisions publicized on the front pages of the Law Journal suggest that it would be well to advise a new generation of lawyers that tactical victories in a jury trial may be followed by a loss of the appellate war. As a reminder, King Pyrrhus of Epirus, in Greece, triumphed over the Romans at Asculum, in southeastern Italy, in 279 B.C.E., but his losses were so heavy that he is reported to have said: “Another such victory over the Romans, and we are undone.” Bartlett's, “Familiar Quotations,” p. 92, quoting Plutarch, “Lives,” Pyrrhus.

In litigation, the aim of an injured plaintiff is to obtain monetary or some other form of relief; for the defendant, vindication and dismissal of the action. It cannot be counted a victory if a favorable verdict is set aside by the trial or appellate court after a lengthy trial and the case must be retried at considerable expense, loss of time and renewed mental and emotional strain on the injured party or his or her survivors—all because of counsel's avoidable error.

Two months ago (NYLJ, May 3, 2017), we discussed Smith v. Rudolph, __ A.D.3d __, 2017 WL 1377809 (1st Dept 2017), in the context of the appellate division's rare exercise of its broad interest of justice jurisdiction to affirm the grant of a new trial because of defense counsel's misconduct, even though plaintiff's counsel had failed to move for a mistrial before the jury returned its verdict for the defendant.