Sunday, September 14, 2008

Exclude Plaintiff from the Trial for Prejudicial Appearance

Appearance and Behavior of Plaintiff During Liability Trial Phase

The Supreme Court has held that civil defendants have procedural due process rights, that include the right to a fair hearing. Outcome and hindsight biases violate this right. Outcome bias cannot be overcome. Abnormal appearance may inflame the jury or induce outcome bias, in jurors, judges, witnesses, and even in experts. The plaintiff lawyer has intentionally selected cases to pursue based on appearance. Cancel this established tactic to induce unjust outcome bias.

An appellate court has affirmed such an exclusion. A victimized appearance may inflame the jury (1) and may induce hindsight and outcome biases (2) in any party in the case, including jurors, judges, witnesses, and even experts (3). Such bias and jury inflaming effects violate the procedural due process rights of the civil defendant to a fair hearing (4). Such a right has been upheld by the Supreme Court of the United States (5).

If the plaintiff has an appearance implying victimization, the doctor defendant may ask the defense attorney to have the plaintiff excluded from court during trial, and from being videotaped in a deposition for court replay (6). If the behavior of the plaintiff is challenging or disruptive, the doctor defendant may have defense lawyer move to force his appearance in court or on videotape deposition.

If the plaintiff lawyer points to the absence of the plaintiff, a mistrial should be requested, with costs assessed to the personal assets of the lawyer, and not of the firm. The defense should not give notice of this plan, but spring it as a gotcha. We should also request criminal contempt charges with jail time for negating the judge's decision. If the motion fails, it still preserves an appellate point, that can go the Supreme Court. The cases of the SC have all addressed punitive damages. The cited case forbade exemplary damages payable for damage to people not party to the case. Its reasoning was such damages represented a taking without opportunity to oppose, a violation of procedural due process. If you have one due process right, do you have all of them? These include the right to not be subjected to established biases. No one has used cognitive biases as an appellate point. If you cannot find a cognitive bias in every tort case, you are not trying.


1. Rule of Evidence Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence…. "Unfair prejudice" means a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially.

2. http://en.wikipedia .org/wiki/ Hindsight_ bias http://en.wikipedia .org/wiki/ Outcome_bias

3. http://www.mja. issues/176_ 06_180302/ hug10592. html ; http://www.ajronlin content/full/ 183/3/557

4. http://en.wikipedia .org/wiki/ Due_process# Procedural_ due_process

5. http://www.supremec opinions/ 06pdf/05- 1256.pdf . Due Process Clause applies to civil defendants.

6. Green v. North Arundel Hospital , 126 Md. App. 394, 730 A.2d 221 (1999). Appellate court upholds exclusion of plaintiff on respirator from any appearance at trial. "…his presence would be overwhelmingly prejudicial, that he required continuing nursing care and extensive medical equipment, and that the equipment would generate noise and distract the jury. Although acknowledging that Darwin 's presence might be relevant to the issue of damages, NAHA asserted that his presence was irrelevant to the issue of liability."

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