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There is a tension between court and lawyers when a determination has to be made by the court as to whether an attorney's breach of a court rule should visit harm on that attorney's client. The appellate court has a difficult task in some instances determining whether trial error should result in a reversal and remand for a new trial because “it clearly appears that there was a miscarriage of justice under the law.” R.2:10-1. And more so, if the appellant's attorney failed to properly object to a critical trial court ruling. There the measuring rod is whether the error was “clearly capable of producing an unjust result.” R.2:10-2. Although the verbiage differs, the language of both rules indicate that the examined error must be of such a magnitude as not to be “harmless error,” but rather one which had a significant impact on the outcome below.

Reasonable persons and reasonable judges can differ on the point at which error, R.2:10-1, morphs into the plain error of R.2:10-2, thereby producing the unjust result which requires reversal.

This brings us to the recent medical malpractice case of T.L. v. Goldberg, 453 N.J. Super. 539, in which, as the result of a dissenting opinion, the case is now to be decided by the Supreme Court. The court has framed the issue for its decision as, whether defense counsel's failure to disclose in interrogatory answers and deposition testimony that his client's testimony would differ from his discovery responses constitutes plain error. In answering the interrogatory, defendant stated that he did not recall relying on any medical text or publication related to his treatment and in his deposition testified that he was not aware of any studies in a certain medical journal as to the use of the medication he prescribed to treat his patient's blood disorder. However, at trial he did in fact rely on an article from that journal which suggested that the prescribed medication might be an effective treatment for T.L.'s condition. Plaintiff's attorney failed to object to the defendant doctor's reference to that article which, of course, should have been done based on the prior discovery responses, until plaintiff's motion for a new trial.

The majority held that defense counsel's failure to disclose the anticipated material change in testimony misled the plaintiff, and that defendant “should not be rewarded for violating a duty of candor to the court and other counsel.” It concluded that the trial court's failure to grant a mistrial was a sufficiently clear abuse of discretion to invoke the plain error rule.

The dissenting judge concluded that the failure of plaintiff's attorney to object to the testimony at the appropriate time did not constitute plain error because the defendant's “brief references to a clinical study during his more than four hours of testimony” did not represent a clear miscarriage of justice requiring reversal of the jury's verdict under the plain error rule.

The majority opinion comments on plaintiff's failure to object to the critical testimony: “The silence is inexplicable.” The dissenting judge, however, did not find it inexplicable. Rather, her interpretation was that plaintiff's counsel, a seasoned veteran “accomplished at fashioning trial tactics and strategies,” purposely withheld objection as part of his strategy. It suggested to her that plaintiff's attorney perceived no error or prejudice. In fact, plaintiff's attorney had relied on the same article in his opening and as part of plaintiff's proofs.

Plaintiff's counsel did not even cross-examine the defendant doctor as to the discrepancy between his interrogatory answers and deposition testimony as contrasted with his testimony at trial. Neither did plaintiff's attorney request the trial judge to implement his pretrial ruling barring use of the medical literature by defendant and, finally, directed his cross-examination of defendant to the substance of the journal article. In other words, since the exclusion criteria in the journal article supported plaintiff's theory of negligence, he purposely did not object and, therefore, was not “clearly prejudiced” by the testimony. Although admitting defense counsel should have advised plaintiff prior to trial of his intended use of the journal article, she stated, “I cannot conclude that the failure to do so, without objection, requires a new trial.”

A guiding principle of judicial decision, as noted in the 1955 Supreme Court case of N.J. Highway Authority v. Renner, is that the court must never lose sight of the fact that “justice is the polestar and our procedures must ever be moulded and applied with that in mind” and the caution in the 1986 Appellate Division case of Santos v. Estate of Santos, 217 N.J. Super. 411, 416 that the “primary mission of the judiciary is to see justice done in individual cases. Any other goal, no matter how lofty, is secondary.”

However the justices of the court may view the specific facts in this case in order to reconcile the competing arguments of counsel, the moral to trial attorneys is simply this: Be alert to potential error in an adversary's trial presentation and make the appropriate objection, with underlying legal argument, at the time of its occurrence.