Bohman Aggregates v. Gilbert

Citation: 2021 UT App 35Docket: 20190867-CA

Court: Court of Appeals of Utah; April 1, 2021; Utah; State Appellate Court

Original Court Document: View Document

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The Utah Court of Appeals affirmed the trial court's decision to grant a new trial after determining that Appellees were deprived of a fair trial due to the conduct of Attorney Brent Bohman, who represented Bohman Aggregates LLC in a dispute with Crusher Rental, Sales, Inc. The trial court found that Attorney Bohman, acting as a pro se attorney-party-witness, violated professional conduct rules by interjecting personal opinions and narratives during the trial process. Appellants argued that the trial court misinterpreted the Rules of Professional Conduct and abused its discretion in granting a new trial. However, the appellate court agreed with the trial court's interpretation of the rules and noted consistent violations in the record, concluding that the trial court did not abuse its discretion. 

The background of the case involves complex negotiations between Bohman Aggregates and Crusher regarding the rights to mining equipment, with conflicting claims about the enforceability and terms of agreements supposedly reached during discussions led by Attorney Bohman. Central to the dispute was a meeting between Attorney Bohman and Crusher’s president, Steve Gilbert, where the interpretation of an agreement hinged on differing accounts of what was communicated. Attorney Bohman’s self-representation raised concerns regarding his adherence to Utah Rule of Professional Conduct 3.4, which prohibits an advocate from testifying in a manner that undermines the integrity of the proceedings, further complicating the jury's assessment of witness credibility.

Attorney Bohman did not address the Rule 3.4 concerns directly, focusing instead on the overlap of his defense arguments with those of his co-defendants. Co-counsel Attorney Jerome Romero acknowledged the importance of Rule 3.4 during a motion hearing, where the trial court warned all attorneys against vouching for the credibility of witnesses. The court made it clear that any attorney expressing a personal belief in a witness's credibility could lead to a mistrial, emphasizing that credibility determinations are ultimately for the jury. The trial court reiterated this warning multiple times, stating that any such conduct must be avoided and that the instructions were formally recorded.

Despite these warnings, Attorney Bohman proceeded to represent himself while also being a critical witness. In his opening statement, he expressed his deep familiarity with the case, asserting that he never owned the mining operations but acted as a representative for his brother. He shared details of negotiations, conveying his emotions and reactions with vivid language, and described his negative impressions of Gilbert, a crucial opposing witness. Bohman contrasted his account with Gilbert's, offering legal analysis, which prompted an objection from opposing counsel that the trial court sustained before the grounds for the objection were stated.

Attorney Bohman faced objections during his presentation, asserting that Gilbert was creating a "false narrative." The trial court sustained the objections, emphasizing that Bohman could not express opinions on the truthfulness of statements made by other parties or witnesses. The court reiterated that Bohman could present facts but was prohibited from characterizing testimony as "false" or "fabricated," as these determinations were reserved for the jury. During his opening and closing statements, Bohman continued to reference witness credibility, stating he acted in good faith while suggesting Gilbert was attempting to negate previous agreements. He recounted his own actions regarding a contract and labeled Gilbert’s claims as "transparent lies." Opposing counsel objected, and the court reiterated the ethical rules prohibiting expressions of witness credibility and the presentation of testimony during arguments. The court warned Bohman that any further violations would result in barring him from making additional comments in the proceedings.

The trial court instructed the jury to disregard certain statements made during the trial that appeared to be testimony, clarifying they were not evidence. After a sidebar, Attorney Bohman addressed the jury, mistakenly characterizing his dealings with Gilbert as trusting an honest businessman. This prompted immediate objections from opposing counsel, leading the court to sustain the objection and cut short Bohman’s closing statement. Throughout the proceedings, opposing counsel objected four times to Bohman’s statements.

Following a jury verdict in favor of the Appellant, the Appellees filed a motion for a new trial under Utah Rule of Civil Procedure 59(a)(1), citing Bohman's violations of Rule 3.4(e). They claimed Bohman's opening and closing statements were filled with improper testimony and personal opinion. The trial court found that Bohman’s opening statement presented personal knowledge rather than referencing evidence, thus undermining his role as an attorney. His comments included inappropriate assessments of witness credibility, particularly targeting Steve Gilbert.

The court noted Bohman's opening was largely in violation of Rule 3.4(e), and his closing statement suffered similar faults, as it also lacked proper evidential references and instead offered a personal narrative. The court reminded that it had previously warned of potential mistrial for rule violations and acknowledged that the Appellees had not waived their rights to request a new trial despite their strategic choice to limit objections. Additionally, the court criticized Bohman’s unprofessional demeanor and emotional conduct during the trial, describing it as demeaning and dismissive, further highlighting his failure to maintain a detached, professional demeanor.

The court determined that Attorney Bohman's conduct, specifically his physical presence and statements, improperly influenced the jury by implying that they should disregard opposing counsel because he possessed superior knowledge of the truth. This behavior violated Rule 3.4(e), which governs attorney conduct, leading the trial court to question the fairness of the trial. The court also noted that improper vouching occurred when Attorney Romero suggested that Bohman's corrections were indicative of honesty, further affecting the trial's integrity. As a result, the trial court granted a new trial and vacated the jury's verdict. 

In reviewing the decision, the appellate court emphasized that a trial court's grant of a new trial is not easily overturned unless there is a clear abuse of discretion. The appellants argued that the trial court misapplied Rule 3.4 and that it should not apply to Bohman as a pro se attorney-litigant. However, the court affirmed that Rule 3.4 does apply to pro se attorney-litigants, interpreting the rule according to its plain meaning while considering the intentions behind it. The court highlighted that adherence to the text of the rule is essential, reminding that ethical considerations must align with the rule's established language.

In State v. Rothlisberger, the court clarifies that Rule 3.4 of the Utah Rules of Professional Conduct applies equally to attorneys representing themselves (pro se) and those representing clients. Rule 3.4 prohibits lawyers from asserting personal knowledge of facts at trial, except when they are testifying as witnesses, and from stating personal opinions on the credibility of witnesses. No exceptions exist for pro se attorneys, as all lawyers must adhere to the professional conduct rules. The court emphasizes that the intent of Rule 3.4 is to promote fairness in the adversarial system by preventing unethical conduct, such as influencing witnesses or concealing evidence.

The court reviewed an assertion that Attorney Bohman violated Rule 3.4 by claiming personal knowledge, and while the appellants argued against this application, the court upheld that the rule's prohibitions enhance its purposes, including ensuring fair competition. The only exception to the rule is when a pro se lawyer is testifying, where they must provide personal knowledge as all witnesses do. The court will further examine whether Bohman's actions warranted a new trial based on these violations.

An attorney, whether representing themselves or not, cannot assert personal knowledge of facts unless they are testifying as a witness. This rule applies universally to all attorneys, including pro se litigants, as there is no exception for pro se status in the rule's language. The rule permits attorneys to suggest personal knowledge only when testifying under oath, thereby prohibiting any assertion of personal knowledge during opening statements, witness examination, or closing arguments. This is illustrated by the case of Holt v. Commonwealth, where improper leading questions were posed, suggesting unsworn testimony.

Pro se attorneys are also restricted from claiming personal knowledge outside of their sworn testimony. This restriction prevents unchecked testimony that could exploit the attorney's influence and undermine the impartiality expected in legal proceedings. The rule does, however, allow pro se attorneys to testify on their own behalf, reinforcing the prohibition against asserting personal knowledge at other times.

In the case of Attorney Bohman, the trial court found that he egregiously violated rule 3.4 during his opening and closing statements by implying personal knowledge without having provided corresponding testimony in the trial. For example, Bohman claimed to have operated in good faith, yet there was no supporting testimony in the record. The absence of such testimony rendered his statements improper, as they did not arise from sworn evidence and were not subject to cross-examination. The court correctly interpreted rule 3.4, and upon reviewing the record, it found no clear error in its determination that Bohman violated the rule, justifying a new trial under Utah Rule of Civil Procedure 59.

Attorney Bohman was found to have violated rule 3.4 of the Utah Rules of Professional Conduct by expressing personal opinions regarding witness credibility during his trial representations. The court emphasized that attorneys are prohibited from offering personal opinions about a witness's credibility, and such conduct is inappropriate regardless of the attorney's status as a litigant. While attorneys may argue that a jury should question a witness's veracity based on evidence, they must avoid language that suggests a personal belief in a witness's credibility.

In his opening statement, Attorney Bohman stated, “I realized I was probably dealing with an absolute crook,” which the court interpreted as a personal opinion rather than a deduction from evidence. Similarly, in his closing statement, he remarked, “the mistake I made in my dealings, I think the evidence shows, is that I treated Gilbert as if he was an honest businessman,” where phrases like “I think” clearly indicated that he was sharing his personal opinion.

Despite the appellants' argument that his comments were permissible deductions based on evidence, the trial court concluded that his statements did not meet the threshold for acceptable inferences and constituted violations of rule 3.4. The court's decision was upheld, and Attorney Bohman’s closing argument was ultimately terminated due to these violations.

Attorney Bohman’s comments regarding the credibility of witness Steve Gilbert were deemed a violation of rule 3.4, which prohibits attorneys from opining on witness credibility. The trial court found that these comments compromised the trial's fairness, leading to the conclusion that a different outcome was likely had these irregularities not occurred. The court's decision to grant a new trial was supported by Utah Rule of Civil Procedure 59, which allows for a new trial based on irregularities or abuse of discretion that hinder a fair trial. 

Appellants argued that the trial court incorrectly interpreted rule 3.4 regarding Attorney Romero’s statements, which were perceived as vouching for Bohman. Romero’s statement, viewed in context, was not found to contain the problematic features of Bohman’s comments. Furthermore, the court retains the authority to grant a new trial for reasons not explicitly stated in a motion, including violations of the Rules of Professional Conduct. 

While Appellants contended that Bohman’s statements could not have been prejudicial due to other damaging evidence, the trial court identified sufficient irregularities to justify the new trial independently of Romero’s statement, which was not pivotal in the court’s reasoning. Thus, the trial court's decision to grant a new trial under rule 59 was upheld.

The trial court's decision to grant a new trial was justified based on a comprehensive evaluation of the case's circumstances, particularly due to violations of rule 3.4 by Attorney Bohman. These violations raised concerns about the trial's fairness and created a reasonable likelihood that the outcome would have been different without the irregularities. The court determined that Bohman's repeated misconduct significantly affected the trial's outcome, and although curative instructions were provided, they may not have adequately mitigated the prejudice caused. The appellate court affirmed the trial court's interpretation of rule 3.4 and its discretion in granting the new trial, emphasizing the trial court's superior position to assess the impact of the attorney's conduct on the jury and the trial proceedings.