Conduct results in mistrial, pro hac vice revocation

Where an attorney violated the federal rules, local rules and court rulings, and allegedly engaged in other conduct that adversely impacted the trial, his pro hac vice status was revoked. And because his conduct resulted in prejudice that could not be cured by a cautionary instruction, a mistrial was granted on the fifth day of trial.

Background

Pending before the court on the fifth day of trial in this case were three motions brought by defendants: (1) an oral motion to quash a witness subpoena; (2) an oral motion to revoke the pro hac vice status of plaintiff’s counsel, Nazareth Haysbert and (3) an oral motion for mistrial. The court granted all three motions. This opinion memorializes the court’s rulings in writing.

Motion to quash

On Aug. 11, 2023, Mr. Haysbert represented to the court that Marcus Wilson had been served that day with a subpoena commanding that he appear in court as a witness on Aug. 11, 2023, and Aug. 14, 2023. Records provided to the court demonstrated that Marcus Wilson had not been served by the process server until 5:25 P.M. on Aug. 11, 2023, outside of the court’s normal business hours, and certainly not timely as set forth below.

The court spent a considerable amount of time seeking to understand why the subpoena was served so late in the proceedings, especially considering that the revised trial date was known to all counsel for the parties on March 1, 2023, there had been identical subpoena issues earlier in the week and plaintiff deemed Marcus Wilson to be a critical witness. As the record reflects, the court concluded that plaintiff failed to demonstrate good cause for the late issuance of the subpoena for Marcus Wilson, and granted the motion to quash because the subpoena was untimely.

Pro hac vice

The court found that the cumulative effect of Mr. Haysbert’s unprofessional conduct, which included violations of the federal rules, local rules and court rulings, and his impact on judicial economy, warranted the revocation of his pro hac vice status. Several examples of Mr. Haysbert’s conduct supporting its decision, all of which were addressed at the Aug. 14, 2023, hearing and are part of the case record of the proceedings, include badgering witnesses through repetitive and combative questioning techniques; purposefully misleading the jury; making conflicting representations and misrepresentations to the court; speaking over the court, opposing counsel and witnesses on multiple occasions; intentionally eliciting hearsay testimony; failing to lay proper foundations and improperly impeaching witnesses on multiple occasions; failing to come prepared as required with paper copies of necessary documents and making improper and/or frivolous objections on multiple occasions.

Mistrial

The court is of the belief that this case has become completely infected by the cumulation of misrepresentations, rules violations, “red herrings” and other misconduct by plaintiff’s counsel. The prejudice that presently exists cannot be cured by a cautionary instruction. First, the court turns to the repeated, and intentional, injections by Mr. Haysbert of insurance/risk management and an improper standard of care in this negligence suit.

Additionally, without repeating the many reasons that supported granting the motion to revoke Mr. Haysbert’s pro hac vice status, many of these reasons also support declaring a mistrial. Reasons include Mr. Haysbert’s failure to follow the rules and the rulings of the court, his outbursts before the jury, his intentional lines of questioning that injected insurance into the case, his backdoor attempts to introduce evidence that was not yet admitted or ruled upon, his blatant mischaracterization of witness testimony and his improper impeachments. Moreover, in the court’s opinion, allowing plaintiff’s local counsel to proceed without Mr. Haysbert at this juncture would be extremely prejudicial to the plaintiff.

Defendant’s motion to quash granted. Defendant’s motion to revoke the pro hac vice status of Nazareth Haysbert granted. Defendant’s motion for mistrial granted.

Haysbert v. Bloomin’ Brands Inc., Case No. 4:20-cv-121, Aug. 23, 2023. EDVA at Newport News (Smith). VLW 023-3-506. 22 pp.