Trick or Treat?

Last week, a Massachusetts appeals court addressed an interesting issue in an appeal from a 2001 jury verdict in favor of the plaintiff in a legal malpractice case. The case, Zabin v. Picciotto, as noted by the appeals court, had a "tortuous history" beginning with toxic tort claims filed in 1983 (this related case decided by the First Circuit in January provides additional information on the underlying facts).

The court addressed one of the defendant's arguments on appeal:

As the trial approached the end of October, the jurors asked the judge if he
would allow them to wear costumes on Halloween. After consulting with counsel
for all parties and hearing no objection, the judge allowed the request. The
defendants contend that the presence of jurors in costumes turned the trial into
a circus and denied their rights to due process. With or without the
consent of counsel to the parties, it is regrettable that the trial judge agreed
to the jurors' request. The introduction of Halloween costumes cannot but have
detracted from the seriousness and gravity of formal court proceedings. However,
as to the defendants' claim of a due process violation, the judge did not merely
accommodate the jurors' request; he consulted with counsel for all parties
before doing so, and all counsel agreed. The issue is waived.

In a footnote, the court outlined some of the defendant's other allegations:

The defendants also assert that some of the plaintiffs’ counsel handed out
candy to the jurors. They further claim that, on another occasion, a proposed
“cast list” was circulated for a Hollywood movie version of the trial. The
record reveals no objection to counsel to any party handing out candy to the
jurors or any indication that the “cast list” was circulated to the jury.

Interesting note: the trial court judge is now a member of the appeals court that decided the case.