Richter orders to find “serious misconduct” to find a mistical

A judge of the overarching court ordered a rare mistake in a civil proceedings after the defender had spoken twice of criminal matters in relation to the owner of the company plaintiff during the survey of witnesses.

Judge Adam Hornstine explained the Mistrial in Tufts Construction Inc. against City of Malden On August 6th. The case includes claims by Tufts Construction to collect more than 250,000 US dollars that were allegedly owed by the city.

The judge made the plaintiff's application for a Mistrial, after the defender Zaheer had the same co -accused Yem Lip, the city's engineer, asked whether he knew that the building owner Peter Tuft's building builder had been put in handcuffs in an incident with a police.

Previously, the plaintiff was unsuccessful in the proceedings, when a former employee of the city interviewed during the cross -question, whether the witness was aware that a federal jury had charged the city's jury because he had submitted bills submitted by the plaintiff.

“Mistrial, because during the procedure that was likely to affect the justice of the judgment, a serious misconduct occurred, and because justice may not take place if the process continues,” the judge wrote when the plaintiff was granted again.

The plaintiff is represented by the lawyers of Boston, Stephen J. Kuzma and India L. Minchoff.

Kuzma said he and his co-country carefully decided to move for a mistical.

“Basically we had to sleep on it after the crime [by defense counsel] And decided that we had to do it, ”said Kuzma.

“There was no way to scrub the recording,” added Minchoff. “It was a cumulative effect of more than an incident of the opposing lawyer. As the judge put it, there was no curative instruction, which we were confident about could have repaired the damage.

Samee, a Burlington lawyer, refused an application for an interview, as did defender Mark E. Rumley from Medford.

In her opposition to the plaintiff's renewed application for a Mistrial, the defense argued that the question of the same lips in connection with a verbal argument between Peter Tufts and a Malden police officer in connection with the oral discussion.

After the defense, the question was permitted because it did not ask for the truth of the alleged matter. Rather, the defense argued that the question had only tried to create Lip's spirit of mind to a certain consulting company that was considered to do business with Tufts Construction.

In addition, the defense argued that a Mistrial was unnecessary, since the healing instruction of the court to the jury that the lawyer's questions were not evidence of “healing the risk of inappropriate prejudice against the plaintiff”.

You simply cannot “remove” the bell. And in this case the bell rang on.

– India L. Minchoff, Boston

The process lawyer of Lincoln, Christopher A. Duggan Fitzpatrick against Wendy's old -fashioned hamburgers from New York. In the decision that the judges of court hearings have to decide on applications for a mistical “in the case”, and that the standard regulates the granting of a new procedure if the judge should wait to decide whether a case after the jury has repeated its judgment.

Duggan said that in his experience in civil cases in civil cases, “extremely” rarely.

“One reason is that the standard you have to meet is really high,” he said. “[You need to show] Something has happened that is so outrageous that the essential rights of the parties and the likelihood of a fair judgment are influenced. ”

Minchoff said that Mistrials are even less common in civilian cases Tuft construction.

“I have been in practice for 40 years and do not remember that I saw an application for a mistical in a civil procedure in 40 years. It just doesn't happen,” said Kuzma. “It is much more common to submit an application for a Mistrial in a criminal proceedings to receive a complaint if you deal with people who may eliminate their freedom if there is misconduct by the public prosecutor.”

But Waltham -Rechtsfreit James E. Harvey Jr. said he had three mistials in his career.

“You have to decide quickly,” he said. “[The misconduct] Could happen in the opening declaration. That happened to me once. I represented the plaintiff in that case. [Defense counsel] said: “We shouldn't even be here. You have already settled and got a lot of money from another defendant. 'We have a mistial in this.”

Contract dispute

According to court files, the plaintiff sued the city and the Lippe in June 2021. The plaintiff claims that the city of Tufts construction of more than 250,000 US dollars for work that was carried out in certain construction projects that it was awarded in a tender procedure. The plaintiff also claims that due to the wrong negative reviews of LIP, he was triggered by his work for other work.

The plaintiff claimed claims for breach of contract, violating the duties of good faith and fair use, interference in business relationships and potential contractual relationships and defamation.

“After complaints by the plaintiff about unpaid invoices at the city of Malden, YEM LIP, director of engineering, other communities provided negative references to other municipalities that caused considerable financial damage to the plaintiffs,” the complaint said. “The references of YEM LIP were refuted by the senior engineer for the city of Malden, which was the processing of the plaintiff as” great “.”

In January 2025, the accused submitted an application to Limine to allow the use of evidence that Peter Tufts had been sentenced to the Federal Court in 2023 for tax evasion and incorrect loan applications submitted. Judge Allison D. Burroughs condemned tuft in criminal proceedings, followed by two years of supervision.

A decision on the request of the Malden was postponed until the legal proceedings. On July 28th, shortly before the start of the procedure, the plaintiff submitted an application for the exclusion of evidence of Tuft's convictions.

The next day, Hornstine decided that the court would not admit any evidence of the earlier convictions of Tufts for all purposes, but would be reserved for the question of whether such evidence would be approved for the purpose of the office in accordance with evidence rule 609.

“Serious misconduct”

The procedure in civil proceedings began on July 29. The plaintiff submitted an application for Mistrial on August 1, after the same asked the same during his cross-interpretation of Glenn Calla, a former city employee of the city, whether he knew about a Bundes' Grand jury for tuffs building calculations.

“The question asked the jury that the plaintiff had related to the city of Malden [the] At least one criminal investigation by the Grand jury, ”wrote the plaintiff's lawyer in the first of two applications for Mistrial.

The plaintiff's lawyer also claimed that the same document during the question, while asking his question, could be seen for the jury.

On August 6, the plaintiff applied for a Mistrial a second time when the same defendant Lippe asked if he knew that Peter Tufts had been put in handcuffs with a police officer as a result of an incident. Once again, the plaintiff's lawyer pointed out that the same document was in his hand when he asked the question.

According to Minchoff, the police report in the same hand reflected the opposite of what the defender tried to convey.

“Mr. Tufts had never been provided by the police officer in cuffs with regard to this incident,” wrote the plaintiff's lawyer to move again for a mistical. “The lawyer knew that he had not taken place and also knew that the witness had no knowledge of it. The accused's lawyer, as he repeatedly did, tried to testify with improper survey of witnesses. There was no good and faith base for the question, and the sole purpose of the further prejudice and the cancellation of the jury was tied.”

The second movement on Mistrial managed.

Duggan said the result was not surprising because the question of whether the previous criminal convictions had been brought to court.

“I suspect that the court was quite frustrated when the problem appeared,” he said. “Every time such a sensitive problem is either applied to direct or cross -experiences, the lawyer has to think long and very much about how to do it and whether it would be a good idea to request a sidebar and give the judge a head.”

Strategic considerations

A new negotiation in this case should begin on October 27th. According to the plaintiff's lawyers, the next step will be to submit an application for fees and costs of the lawyers, although the committed amounts that are to be sought as a compensation for expenses incurred in the termination procedure are still concluded.

“It was with extreme reluctance that this movement [for mistrial] was even submitted, “said Minchoff.” Nobody wants [take up the time] Out of 17 witnesses, 14 jurors and the Commonwealth. My customer waited for his day in court for four years, and the day before the conclusion of the proof that there is a Mistrial. ”

Kuzma said he was frustrated one of the jurors in a court elevator about the Mistrial.

“Imagine: 14 people basically took two weeks from their summer. They were very disappointed that it ended in this way,” he said.

According to Duggan, there are strategic considerations when a process lawyer is confronted with potential reasons for a Mistrial. Apart from the fact that the additional costs for the customer, if a case must be reproduced, must be taken into account, Duggan takes into account whether the customer has a good chance of success if the test version can continue a judgment.

“If you believe that everything goes swimming for you, you don't want to get defeat out of the pine of the victory,” he said.

Harvey agreed.

“Assume [the misconduct by the other side] occurs late in the case or at the end of arguments, ”he said. Perhaps the other side was difficult to take just because they wanted a new process. [Tufts Construction,] It was really bad. The judge was probably really crazy. ”

Duggan said that there are also practical considerations that put a strain on a court if they decided to grant a mistical in a civil proceedings.

“It takes a lot to bring a case to court,” he noted. “It is a great time on the part of the lawyers, parties, court and jury. All of this is wasted when you have a mistial.”