Daredevil was recently relaunched with a new issue #1 (issue #2 comes out tomorrow). The new series brings a more upbeat take on Matt Murdock, and importantly for us it also brings a new focus on Murdock and Foggy Nelson’s law practice. Spoilers ahead:
Although Daredevil has relaunched, it has not rebooted. Continuity has more or less been maintained from prior issues, and along with that comes the fact that Daredevil’s secret identity was outed, at least in the tabloid press. Most of the fallout from that has died down, but Murdock still has to dodge low-grade paparazzi and bloggers (props to the writers for using the term ‘blawg’ – we think it’s kind of a silly meta-neologism but lots of people use it). The real trouble comes when Murdock and Nelson represent the plaintiff in a police brutality case. The defense counsel continually brings up Murdock’s alleged identity as Daredevil in order to discredit him. The problem is the way this scene is written.
As written, the defense attorney brings up Daredevil by objecting when Matt says to the testifying plaintiff, “…and you claim the officer in question hurled racial epithets at you as he dragged you from your vehicle. Mr. Jobrani, could you repeat—“. The defense attorney says, “Objection your honor! The defense questions the motivation of counsel in bringing charges of police brutality. After all, as the vigilante Daredevil, Mr. Murdock already maintains an adversarial relationship with patrolmen, does he not?” Matt simply sighs in response.
This is, we’re afraid, pretty unrealistic. The defense attorney could perhaps try to impugn Murdock’s reputation during opening or closing arguments, he could even try to make hay out of a possible conflict of interest. But an objection during examination of a witness is a completely inappropriate place to bring up the issue because the objection has nothing to do with the propriety of the question or the admissibility of the answer. Given that, Matt really should have fought back rather than simply sighing.
The comic suggests that this kind of thing continues on and on, which is really where it leaves the rails. If an attorney keeps making snide remarks and bringing up irrelevant allegations then the judge is likely to sanction him or her. What is highly unlikely is that the judge would instead order a continuance and suggest that the plaintiff get a new lawyer.
This scene could just as well have been written as a pre-trial hearing in which the defense counsel brings up these same issues. And the judge could perhaps have rescheduled the trial in order to give the plaintiff time to find a new lawyer. The writers could have made the same point about Murdock’s identity without screwing up the law. For us, that’s one of the most annoying kinds of errors, since they’re completely avoidable (Note to Daredevil writer Mark Waid: We’re available for consultation.)
II. Sua Sponte Continuances
As mentioned, the judge orders a continuance (i.e. a delay in the trial) and suggests that the plaintiff find a new attorney. The plaintiff asks “Can he do that?” Foggy says “In extreme cases, and only if the defense doesn’t object.” Unfortunately, this is probably wrong, at least in New York state court.
N.Y. C.P.L.R. § 4402 says “At any time during the trial, the court, on motion of any party, may order a continuance or a new trial in the interest of justice on such terms as may be just.” There have been a couple of cases in which a New York appellate court has considered whether a trial judge can order a new trial sua sponte (i.e., on its own), and presumably the rule for continuances is the same, since they both come from the same statute.
One case suggested that a trial court can order a new trial sua sponte (Brigham Park Cooperative Apartments, Inc. v. Finance Administrator, 83 A.D.2d 551 (N.Y. App. Div. 1981)) and the other, more recent case explicitly held that a trial court cannot. Muka v. Cohn, 146 A.D.2d 826, 827 ((N.Y. App. Div. 1989). The statute seems perfectly clear to us: a trial court cannot order a continuance sua sponte and must wait for a party to make the motion. We’re sure the defense attorney would have been happy to oblige in this case.
It’s not completely clear, however, which court the case is taking place in. A federal § 1983 claim would be a reasonable claim to make in response to police brutality, so this could be a federal court case. Unlike New York trial judges, federal district court judges can order a continuance sua sponte, at least in the criminal context. See 18 USC 3161(h)(7)(A). Even so, we’re not sure what Foggy was getting at with his talk of the consent of the defense being required.
One final note: the judge orders the parties to “see the bailiff for rescheduling.” In reality, the parties would consult the clerk. This is especially odd because the artist drew what looks like a clerk in the courtroom but not a bailiff. Ah well.
On the whole we enjoyed Daredevil #1. The main plot is good, and the legal errors didn’t detract too much from the story, as much as we wish the writers had gotten the details right. We look forward to continuing with this series and hope you’ll follow along.