There are ethics issues playing out in the courtroom and legal media about the alleged  conduct of a Pennsylvania trial court judge and defense counsel in a case in which a jury awarded $8 billion (yes, billion) in punitive damages against Johnson & Johnson in a Risperdal trial. J&J attorneys filed a recusal motion, among other post-judgment motions, which has already been denied. The alleged conduct will undoubtedly become part of J&J’s appellate strategy.

Following a three week trial the judge admittedly posed with jurors for photos at the jurors’ request in the courtroom. Both plaintiff and defense counsel took photos. J&J now claims the judge “high-fived” jurors, implicitly approving of their verdict. The judge denies having done so. There are photos taken by Plaintiff’s council which have not been released to the defense. The judge has threatened to file ethics complaints against J&J counsel for fabricating the “high-five” part of the story.

Jurors become attached to judges during long trials. Judges typically thank them for their service, perhaps more fervently in a long case. The picture request is a bit more unusual.

The “high-five”, if it happened, feels uncomfortable. It implies a blessing on the verdict, complicating any post-judgement motion practice and adding a layer of taint to the trial rulings.

Takeaway? If you feel a judge is exhibiting bias in rulings (distinguished from finding your arguments are just not worthy), make a record. Note unfriendly facial expressions, inappropriate tone of voice, even gestures. Note them in a respectful tone, but do not let them pass.