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Attorney’s conduct results in mistrial

Nick Hurston//September 25, 2023

Jury observing court proceeding


Attorney’s conduct results in mistrial

Nick Hurston//September 25, 2023//

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After a California attorney’s “unprofessional conduct” during the trial of his client’s negligence claim resulted in prejudice that couldn’t be cured by a cautionary instruction, an Eastern District of Virginia judge declared a mistrial and revoked the out-of-state attorney’s pro hac vice status.

Spanning several pages in the court’s opinion, U.S. District Judge Rebecca Beach Smith outlined numerous violations of federal and local rules, court rulings and other conduct that adversely impacted the trial, and refused to allow the trial to proceed even with plaintiff’s local counsel.

“[T]he 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, and, the prejudice that presently exists cannot be cured by a cautionary instruction,” Smith wrote.

The opinion is Haysbert v. Bloomin’ Brands Inc., et al., (VLW 023-3-506).

Fairfax litigator John McGavin, who represented the defendants, told Virginia Lawyers Weekly he was filing a motion for sanctions but wasn’t able to provide further comment on the pending matter.

‘Pro hac vice’

Joann Haysbert claimed she was injured after slipping on a wet floor in an Outback Steakhouse in Chesapeake. She sued Outback Steakhouse and its parent company, Bloomin’ Brands, in the Eastern District of Virginia for negligence.

Although signed by a Virginia attorney, the complaint listed two California attorneys — including the plaintiff’s son, Nazareth Haysbert — who sought admission pro hac vice. The court admitted Haysbert and Roanoke attorney David McKelvey soon appeared as local counsel.

Haysbert assumed the role of lead counsel at trial, questioned all witnesses and interacted with the jury. McKelvey was present but didn’t actively participate. On the fourth day of trial, the defendants asked the court to declare a mistrial and revoke Haysbert’s pro hac vice status.

Per the opinion, Haysbert repeatedly used the word “ensure” and uttered “insurance” while questioning the restaurant’s owner despite sustained objections. The court explained to Haysbert the issue with injecting insurance and an improper standard of care in the case.

Haysbert, however, ignored the warning and continued to ask insurance-related questions.


At a hearing on the defendants’ motions, Smith recited several examples of Haysbert’s “unprofessional conduct,” including violations of the federal rules, local rules and court rulings.

Per the opinion, Haysbert badgered witnesses, purposefully misled the jury, made conflicting representations and misrepresentations to the court, spoke over the court, opposing counsel and witnesses, intentionally elicited hearsay, failed to lay proper foundations, improperly impeached witnesses, made improper and/or frivolous objections and was unprepared at trial.

“‘Specific grounds for revocation [of pro hac vice status] can include unprofessional conduct, violation of the local rules, and a wide variety of ethics violations,’ as well as ‘an attorney’s impact on judicial economy,’” Smith explained.

Rather than depend on one “bold ground” for revocation, the judge said a court could consider “‘the combined effect of an attorney’s misconduct and disregard for the Local Rules, so long as the attorney is provided due process.’”

Here, Smith found that the cumulative effect of Haysbert’s conduct warranted the revocation of his pro hac vice status.

‘Infected’ trial

While the declaration of a mistrial is an “extreme measure,” Smith believed the case had become “completely infected” by the cumulation of Haysbert’s misconduct and the existing prejudice couldn’t be cured by a cautionary instruction.

The judge pointed out that the “repeated, and intentional, injections by Mr. Haysbert of insurance/risk management and an improper standard of care in this negligence suit” was reversible error.

And when a cautionary instruction can’t cure the overwhelming prejudicial effect of an improper remark or question, a court is required to grant a new trial if requested.

“Given the repetitive nature of these lines of questioning which Mr. Haysbert knew, or at least should have known based on depositions and discovery in this case would inevitably lead to responses relating to Defendants’ risk management/insurance, the court found this be a deliberate injection of insurance into the case,” Smith wrote. “Therefore, it is the court’s opinion that this issue alone is grounds for a mistrial.”

But this wasn’t Smith’s only concern of prejudice.

Many of the reasons supporting the revocation of Haysbert’s pro hac vice status also supported declaring a mistrial, “all of which have, no doubt, had a prejudicial effect on the jury and cannot be cured by any type of curative instruction,” Smith said. “In the court’s opinion, the whole atmosphere of this trial has become infected.”

Local counsel

Smith then ruled that allowing plaintiff’s local counsel to continue the trial without Haysbert would be extremely prejudicial to her.

“Mr. McKelvey did not examine a single witness, rarely was able to answer questions posed by the court regarding the case, and allowed numerous rules violations to occur before the court, apparently without counsel to Mr. Haysbert,” the judge pointed out.

Haysbert had conducted the trial and held himself out as lead counsel.

“His sudden absence from the trial would inevitably cause much speculation among members of the jury, which was also a major concern to the court,” Smith wrote. “Such speculation is not appropriate in a jury trial.”

The judge said the cumulation of problems thwarted fairness for everyone involved and no curative instruction could overcome the prejudice.

“Succinctly put, the court is of the opinion that the process of trial has been abused and a fair trial in the presence of this jury could not go forward at this juncture,” Smith concluded. “Therefore, the court has no choice but to grant Defendants’ Motion for Mistrial.”

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