2021 UT App 35

THE UTAH COURT OF APPEALS

BOHMAN AGGREGATES LLC, ET AL., 1

Appellants,

v.

STEVE L. GILBERT AND CRUSHER RENTAL & SALES INC.,

Appellees.

Opinion

No. 20190867-CA

Filed April 1, 2021

Second District Court, Morgan Department

The Honorable Noel S. Hyde

No. 150500016

Jerome Romero and Brent A. Bohman, Attorneys

for Appellants

Bryan J. Pattison and Dana T. Farmer, Attorneys

for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN

concurred.

MORTENSEN, Judge:

¶1 After hearing opening and closing statements riddled 

with first-person narrative and personal opinions from a pro se 

attorney-party-witness, the trial court found that Appellees had 

been deprived of a fair trial and granted a new trial. Appellants 

contend that by so ruling, the trial court misinterpreted the Rules 

of Professional Conduct and abused its discretion. Because we 

 

1. The parties on appeal are not limited to those listed, but also 

include other parties whose names appear on the notice of 

appeal or who have otherwise entered appearances in this court.
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agree with the trial court’s rule interpretation, and where the 

record demonstrates obvious and consistent violations, 

Appellants fail to show that the trial court abused its discretion 

in granting a new trial. Therefore, we affirm.

BACKGROUND

¶2 Some years back, Bohman Aggregates LLC assumed 

control of an ongoing mining operation and, along with it, 

Crusher Rental & Sales, Inc.’s (Crusher) onsite mining 

equipment. Eventually, Crusher and Bohman Aggregates 

initiated negotiations about the rights to the equipment. During 

this negotiation period, attorney Brent Bohman (Attorney 

Bohman) assisted with drafting and negotiations. Attorney 

Bohman was the brother of Bohman Aggregates’ owner and 

lived on the land Bohman Aggregates used for its mining 

operation. Allegedly, Attorney Bohman had authority to execute 

agreements on Bohman Aggregates’ behalf. But the truth about 

what happened next is clear as mud. Bohman Aggregates (and 

Attorney Bohman as its representative) and Crusher had 

disparate ideas about new equipment issuance, various 

payments, and the proposed contracts’ purpose, meaning, and 

scope. Despite the parties’ efforts to clarify their contractual 

relationship, they disagreed about which documents, as 

potentially informed by other communications, became 

enforceable contracts and what those supposed contracts even 

meant.

¶3 The central dispute revolved around a meeting between 

Attorney Bohman and Steve Gilbert, Crusher’s president. 

Attorney Bohman alleged that at that meeting he signed an 

agreement and wrote the words “subject to addendum” next to 

his signature. Attorney Bohman claimed that he “expressly told” 

this to Gilbert and wrote “subject to addendum” to ensure the 

contract’s “four corners” indicated his conditional acceptance. 
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Gilbert, meanwhile, maintained that the contract itself 

constituted the entirety of the parties’ agreement. Gilbert 

claimed that Attorney Bohman snuck “subject to addendum” 

onto the contract after he left the room. When Attorney Bohman 

sent an addendum, Crusher rejected it, sent its own proposed 

addendum, and filed a mining lien against Bohman Aggregates. 

Bohman Aggregates filed a claim against Crusher, seeking to 

invalidate the signed agreement. Crusher counterclaimed. And, 

in this counterclaim, Crusher sued Attorney Bohman personally 

as part of the joint venture.

¶4 The contract’s enforceability, and Attorney Bohman’s 

personal liability, hinged, in large part, on whether Attorney 

Bohman or Gilbert told the truth about their meeting. Thus, the 

jury’s witness-credibility assessment took front and center in the 

case. Despite the fact that Attorney Bohman would be a critical 

witness, he decided to represent himself. Appellees thus 

expressed concerns, both in a motion and at a hearing held four 

weeks before trial, about Attorney Bohman abiding by Utah 

Rule of Professional Conduct 3.4 (rule 3.4).2 Appellees’ counsel 

asserted,

My concern is Rule 3.4. As an advocate, [Attorney] 

Bohman simply can’t help himself. . . . He gives his 

opinion; accuses me of things; he calls testimony 

false, unreputable; my client’s a liar; we’re acting in 

bad faith. He cannot help but give his opinion as 

an advocate. And there’s no constitutional right to 

violate Rule 3.4.

 

2. Rule 3.4 prohibits a lawyer from asserting “personal 

knowledge of facts in issue except when testifying as a witness” 

and from stating “a personal opinion as to . . . the credibility of a 

witness” or “the culpability of a civil litigant.” Utah R. Prof’l 

Conduct 3.4(e).
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¶5 Attorney Bohman never directly responded to the rule 3.4 

concerns (instead arguing about the extent to which his personal 

defense arguments could overlap with his co-defendants’ 

arguments). Attorney Jerome Romero (Attorney Romero), who 

represented all Appellants except Attorney Bohman at trial, 

joined the discussion, stating, as co-counsel with Attorney 

Bohman, “We understand Rule 3.4.”3

¶6 Although the trial court denied a motion to disqualify 

Attorney Bohman from representing himself, during the motion 

hearing it warned,

I’m also going to make a general caution to all 

counsel in this case, particularly in as much as 

issues of credibility have become a fairly 

substantial focus in this matter. And that is a very 

severe caution against any conduct by counsel that 

would vouch for the credibility or suggest a lack of 

credibility of any witness or party in the case.

Counsel may ask questions, but questions or 

determinations of credibility are ultimately 

questions for the jury. And if an attorney, in 

argument, argues that “This witness should be 

believed over some other witness” or “I believe this 

witness” or “I’ve worked with this witness for 

 

3. In their reply brief, Appellants contend that Attorney Romero 

was actually referring to rule 3.7, which was also at issue in that 

conference. While that may have been Attorney Romero’s 

intention, that is not what the record reflects. But more 

importantly, this distinction is irrelevant because all attorneys 

are under the obligation to understand and abide by all the 

standards contained in the Utah Rules of Professional Conduct—

including rule 3.4.
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years and he’s credible and you should believe him 

because I believe him,” any conduct like that will 

result in a mistrial. That is absolutely prohibited.

The court explained that the parties would be able to juxtapose 

testimony and invite the jury to consider witness credibility but 

reiterated that “counsel may not cross that line to express a 

personal opinion as to the credibility of any witness.” The 

attorneys did not object nor seek any clarification. Again, the 

trial court repeated the warning: “And so it is abundantly clear, 

if that happens, the Court will declare a mistrial.” Once more, 

the trial court warned that such conduct “needs to be 

significantly guarded against . . . [and] simply cannot occur.” 

Finally, the trial court made clear that its instruction was “on the 

record, [and] if that happen[ed], the consequences [would] be as 

indicated.”

¶7 With the scene set, by both the Utah Rules of Professional 

Conduct and the trial court’s unequivocal statements, Attorney 

Bohman pursued his course of self-representation in a case 

where he would also serve as a critical witness. He began his 

opening statement boldly:

I’ve been living this case for three years, and I 

think I have a hard time listening to it. I always 

used to tell my clients when I practiced law full 

time that I, as a lawyer, will never know the case as 

well as they do. And having been sued for the first 

time as an individual, I find that experience and 

statement to be true.

He continued,

Let me be as clear as I can possibly be. At no time 

was I ever an owner of the mining operations being 

conducted at Bohman ranch. . . . [But] [m]y claim to 

fame is that I live on the ranch. And given that [my 
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brother] doesn’t live there, I became [his] eyes, I 

became his ears, and I was asked to perform 

specific tasks from time to time on his behalf, 

which I did. As members of a family, you do things 

for each other.

¶8 Attorney Bohman’s opening statement continued in 

direct, first-person narrative. He stated that during negotiations 

he meant to “move the ball forward in good faith” and that his 

“concern was that [the other party] not misconstrue what [they] 

were doing.” Attorney Bohman recounted conversations in 

detail and described his thoughts and feelings about them with 

phrases like, “to my shock and horror,” and, “I must have 

looked like a deer caught in the headlights.”

¶9 Attorney Bohman also described his impression of the 

negotiations by saying, “[I]t was at that point in time that I 

realized I was probably dealing with an absolute crook.” 

Attorney Bohman was referring to Gilbert, the only other 

individual in the room during the crucial events—naturally, a 

pivotal witness in the case. Speaking of Gilbert, Attorney 

Bohman declared, “Either this man doesn’t understand his own 

contract or he thinks I’m an idiot and that I’m going to rely on a 

prior writing that would be wiped out.” Attorney Bohman 

pressed forward comparing his and Gilbert’s versions of events 

and providing legal analysis of Gilbert’s position. After all the 

foregoing, opposing counsel finally objected, and the trial court 

sustained the objection before opposing counsel even stated 

grounds.

¶10 But Attorney Bohman was undeterred, asserting that 

Gilbert started “to fabricate a false narrative” and that “what 

he’s done through this period as he [weaves] his false narrative 

is he started to—” Opposing counsel again objected, and the trial 

court immediately sustained. After the trial court ruled on the 
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objection, opposing counsel clarified the objection’s basis—that 

Attorney Bohman had given “argument and opinion.”

¶11 During an ensuing sidebar conference, the trial court 

reiterated the instructions from the pretrial conference:

Expressions of your opinion, [Attorney] Bohman, 

about the truth or falsity of statements made by 

another party or another witness are not 

appropriate. I’ve already made that very clear in 

my instructions previously, and I will not permit 

that kind of conduct. 

If you want to state what you believe the facts are, 

that’s fine. If you want to state what you believe 

the other party may allege the facts to be, that’s 

fine. But you may not characterize as “false” or 

“fabricated” or other adjectives of that nature a 

characterization of the opponent’s testimony. You 

can articulate the facts, but you may not express 

your opinion as to the credibility or believability of 

any other witness or the facts that are going to be 

presented by those witnesses. Those issues are 

exclusively within the purview of the jury, and I 

will not permit that conduct.

Attorney Bohman’s opening statement ended shortly thereafter.

¶12 Attorney Bohman’s closing argument was much the same. 

He began by referencing his testimony on the stand but then he 

launched into another direct, first-person narrative about 

witness credibility. Attorney Bohman stated that “[A]t all times 

[he] operated in good faith” and opined that, on the other hand, 

Gilbert “was really trying to wipe out all the prior promises.” 

Attorney Bohman said, “I assumed he was acting in good faith, 

as I was acting in good faith,” which “consists of . . . notions of 
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honesty, truthfulness, genuineness, and a lack of deceit.” He 

stated, “I wrote on the contract three words ‘subject to 

addendum.’ It wasn’t Tweety Bird that wrote those, it wasn’t 

Casper the ghost, it was me. This is my handwriting” and 

Gilbert “was 4 feet away from me when I did it.”

¶13 Recounting part of Gilbert’s testimony, Attorney Bohman 

said, “There’s no reason, as he’s testified to you, I would say 

‘Oh, I’ve got to make a note to remember to write the 

addendum.’” He continued, “It’s just a transparent lie. He 

wanted to wipe out his prior promises, and he believed that if 

those words weren’t initialed, then they didn’t mean anything. 

He was wrong. And just in case he wasn’t wrong or was wrong, 

he decided to make up a lie to create—”

¶14 Opposing counsel objected at that moment. The trial court 

sustained the objection, and in yet another sidebar stated,

The rules of ethics prohibit any expression of 

opinion on the credibility of any witness. And that 

conduct is absolutely prohibited. You’ve been 

warned about that before, and the Court will not 

countenance that conduct. Those—those direct 

statements are in direct contradiction of the order 

of the Court. . . .

[T]he rules of ethics also prohibit expressing 

testimony during argument, and you’ve been 

doing that as well. And that’s inappropriate. You 

can make comments on the evidence, but you may 

not testify during your closing. . . .

You may not express as facts what will be the 

equivalent of your testimony, and you may express 

no opinion about the credibility of any other 

participant in the proceedings . . . . And if any of 
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those restrictions are violated, you’ll be barred 

from making any further comments at all.

¶15 When Attorney Bohman asked if he could argue what his 

testimony was, the trial court clarified,

You can say that your testimony was X, Y, Z but 

you cannot testify from the podium. You cannot 

say, “I was there.” You cannot say, “I did this.” 

You cannot say, “I did that.” You can say, “The 

testimony shows this” or “The testimony shows 

that.” . . . And you may not present anything which 

would be in the nature of testimony, and you may 

not make any comment that attributes credibility 

or lack of credibility to any other party or witness.

The trial court made the consequences clear: “[A]ny violation of 

those restraints will result in your being barred from any further 

comment in the proceedings.” The trial court then clarified for 

the jury those statements that “are in the nature of or appear to 

be testimony are not testimony, they are not evidence in these 

proceedings, and are to be disregarded by the jury.”

¶16 Once the sidebar concluded, Attorney Bohman then 

stated to the jury, “Getting back to the concept of good faith, the 

mistake I made in my dealings, I think the evidence shows, is 

that I treated . . . Gilbert as if he was an honest businessman.” 

When opposing counsel objected, the trial court immediately 

sustained the objection and terminated Attorney Bohman’s 

closing statement. All told, opposing counsel objected four times 

throughout Attorney Bohman’s opening and closing statements.

¶17 Following a jury verdict in Appellant’s favor, Appellees 

moved for a new trial under Utah Rule of Civil Procedure 

59(a)(1). In the motion, Appellees alleged, “From his opening to 

his closing, [Attorney] Bohman serially and intentionally
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violated rule 3.4(e). Nearly his entire opening statement was 

improper testimony. That opening included improper opinion 

and commentary.” (Cleaned up.) Appellees further alleged that 

“Attorney Bohman went off again in his closing, the entirety of 

which was improper opinion and testimony.” The motion based 

its request on allegations of improper testimony and improper 

opinion.

¶18 On those same grounds, the trial court granted a new trial 

and vacated the judgment:

[Attorney] Bohman in connection with both his 

opening and closing statements was consistently 

and egregiously in violation of Rule 3.4(e). 

[Attorney] Bohman’s opening statement, for 

example begins as a statement of his personal 

knowledge and his personal experiences. There is 

very little reference or suggestion at all as to what 

the evidence will show in the case; rather there is 

simply a direct presentation by [Attorney] Bohman 

of his own personal expressions of his personal 

knowledge relative to the case. The reason that that 

conduct is proscribed by the rules is that it is 

expressly inappropriate for an attorney to suggest 

that he has personal knowledge that goes beyond 

what the jury may understand or hear. When an 

attorney does that, he compromises his role as an 

attorney and crosses the line to the inappropriate 

presentation of evidence. That line was crossed 

repeatedly and consistently by [Attorney] Bohman 

throughout his conduct when appearing as an 

attorney in this case. 

Not only were there inclusions of statements as 

though from personal knowledge, but there were 

statements as to the credibility of the witnesses 
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setting forth in anticipatory strike against the 

credibility specifically of . . . Steve Gilbert. That is 

inappropriate. The Court finds that [Attorney] 

Bohman’s opening statement was essentially and 

almost in its entirety in violation of rule 3.4(e).

The Court also finds that the closing statement was 

subject to the same problems as the opening. 

Rather than being an argument suggesting a legal 

principle and making reference to a particular 

piece of evidence or material that had been 

presented appropriately as evidence, [Attorney] 

Bohman again engaged in simply a first person 

narrative of the facts of the case suggesting his 

personal knowledge.

The trial court then referenced its pretrial warning “that it would 

consider a mistrial request if those rules were violated.” It also 

said that because “[t]he Rule 3.4(e) issue was known by all the 

parties” before trial, Appellees had not waived their opportunity 

to request a new trial on these issues. The Appellees’ choice, the 

trial court noted, “to desist from repeated objections” was 

“strategically understandable.”

¶19 The trial court also took issue with Attorney Bohman’s 

“physical appearance,” “demeanor,” “substantial emotion,” and 

“variations in volume,” as well as the “tone of his comments,” 

noting that these were “less than professional and detached” and 

characterizing them as “demeaning,” “forceful,” “dismissive of 

the arguments of others,” and “suggesting a superiority of his 

knowledge.” In short, the court ruled that “[Attorney] Bohman’s 

physical presence, when combined with his statements, 

communicated . . . to the jury, in effect, ‘you don’t have to listen 

to them because I was there and I know the truth.’” And, “that 

essence, both by his physical presence, the tone, and nature of 
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20190867-CA 12 2021 UT App 35

his presentation, and the substance of its content directly violates 

the requirements of Rule 3.4(e).”

¶20 Based on the totality of the circumstances, the trial court 

found that “the fairness of [the] trial ha[d] reasonably been 

called into question.” And further, the trial court found “that it 

[wa]s reasonably likely that a different result would have 

occurred had those irregularities and improper conduct not 

taken place.” The trial court also discussed “a statement made by

[Attorney] Bohman’s co-counsel, [Attorney] Romero, during his 

own closing statement, wherein [Attorney] Romero suggested 

that [Attorney] Bohman’s correction of testimony with respect to 

the particular timing of an issue was based upon issues of 

‘honesty’—that ‘that’s what an honest person does.’” The trial 

court ruled that the statement constituted “improper vouching 

for the credibility of a witness” and considered that statement in 

light of the trial’s “greater context.”

¶21 The trial court granted a new trial and vacated the jury’s 

verdict. Appellants now bring the instant interlocutory appeal.

ISSUE AND STANDARD OF REVIEW

¶22 When a trial court grants a new trial, “we will not reverse 

absent a clear abuse of discretion by the trial court,” but “we 

review the legal standards applied . . . for correctness,” 

recognizing that “a trial court abuses its discretion if its decision 

is premised on flawed legal conclusions.” State v. Boyer, 2020 UT 

App 23, ¶ 18, 460 P.3d 569 (cleaned up); see also Goddard v. 

Hickman, 685 P.2d 530, 532 (Utah 1984) (“A trial court has broad 

latitude in granting or denying a motion for a new trial, and will 

not be overturned on appeal absent a clear abuse of discretion.”).
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ANALYSIS

¶23 Appellants contend that the trial court misinterpreted rule 

3.4 and abused its discretion when applying that 

misinterpretation to grant a new trial. To support this 

contention, Appellants assert that rule 3.4 does not apply to 

Attorney Bohman but that even if it did, he did not violate the 

rule. We discuss rule 3.4’s relevant aspects in turn and then 

review rule 59 of the Utah Rules of Civil Procedure.

I. Rule 3.4

¶24 The trial court granted a new trial based on Attorney 

Bohman’s numerous and blatant rule 3.4 violations. See Utah R. 

Civ. P. 59(a)(1) (allowing a trial court to grant a new trial for an 

“irregularity in the proceedings of the court.”). But Attorney 

Bohman contends that the trial court abused its discretion 

because, in part, rule 3.4 did not apply to him as a pro se 

attorney–litigant. Accordingly, we first review the trial court’s 

interpretation that rule 3.4 applies to pro se attorney–litigants, 

ultimately concluding that it does.

¶25 “We interpret a court rule in accordance with its plain 

meaning, and our objective in interpreting a court rule is to give 

effect to the intent of the body that promulgated it.” In re 

Discipline of Brussow, 2012 UT 53, ¶ 14, 286 P.3d 1246 (cleaned 

up); see also In re Discipline of Dahlquist, 2019 UT 15, ¶ 21, 443 P.3d 

1205. While we understand the Utah Supreme Court’s 

admonition that “no set of rules or guidelines can exhaust the 

moral and ethical considerations that should inform a lawyer [as 

to duty],” Burke v. Lewis, 2005 UT 44, ¶ 29, 122 P.3d 533 (cleaned 

up), when interpreting these rules, we are “bound by the text of 

the rule,” Strand v. Nupetco Assocs., 2017 UT App 55, ¶ 4, 397 P.3d 

724. “[W]e look to the express language of the rule . . . [and] read 

each term in the rule according to its ordinary and accepted 

meaning.” See Drew v. Lee, 2011 UT 15, ¶ 16, 250 P.3d 48 (cleaned 
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up). “Further, we interpret the rule to give meaning to all its 

parts, avoid construing the rule in a way that renders any 

portion of it superfluous, and interpret the rule so as to maintain 

its harmony with other court rules related to it.” State v. 

Rothlisberger, 2006 UT 49, ¶ 21, 147 P.3d 1176.

¶26 Rule 3.4 governs fairness to opposing parties and counsel 

and provides, “A lawyer shall not . . . in trial, . . . assert personal 

knowledge of facts in issue except when testifying as a witness, or 

state a personal opinion as to . . . the credibility of a witness.” 

Utah R. Prof’l Conduct 3.4(e) (emphasis added). The rule 

provides no exception for attorneys appearing pro se. Indeed, 

the rules otherwise make clear that “[e]very lawyer is 

responsible to observe the law and the Rules of Professional 

Conduct.” Id. at Preamble: A Lawyer’s Responsibilities; see also

State v. Jones, 558 S.E.2d 97, 104 (N.C. 2002) (“[A]ttorneys 

appearing before our courts are expected, at a minimum, to 

conduct themselves in accordance with such rules. . . . [T]rial 

judges have a . . . responsibility . . . to take appropriate action 

against opportunists who purposely venture to violate 

courtroom protocol.”). 

¶27 Though no Utah caselaw addresses the subject directly, 

other courts agree with our interpretation that the rules of 

professional conduct and the associated “professional 

responsibilities govern the conduct of attorneys whether they 

represent themselves or others.” See Brunswick v. Inland Wetlands 

Comm'n, 610 A.2d 1260, 1266–67 (Conn. 1992). For one thing, this 

interpretation flows logically from the fact that “a pro se 

lawyer/litigant does represent a client when representing himself 

or herself in a matter.” See Runsvold v. Idaho State Bar, 925 P.2d 

1118, 1120 (Idaho 1996) (cleaned up). And specifically, the 

Connecticut Supreme Court has interpreted that state’s 

substantively identical rule 3.4 and come to the same conclusion:
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Rule 3.4 . . . contains no contextual 

suggestion that it is applicable to an attorney only 

when the attorney is representing a client and not 

when he or she is acting pro se. Although some of 

our attorney disciplinary rules apply only when a 

lawyer is acting in a representative capacity . . . 

there is no indication, either in the language of rule 

3.4 or in the relevant commentary to the rule, that 

the rule’s prohibitions are inapplicable when the 

attorney is acting pro se rather than representing a 

client. 

. . . [T]he commentary to rule 3.4 states, the 

rule is designed to promote “fair competition in the 

adversary system by securing prohibitions against 

destruction or concealment of evidence, 

improperly influencing witnesses, obstructive 

tactics in discovery procedure, and the like.” 

Because the conduct proscribed by rule 3.4 is 

incompatible with the principle of fair competition 

that forms the basis of our adversary system of 

justice, an attorney who acts in contravention of 

the rule cannot justify that conduct on the basis 

that it was intended to benefit himself or herself 

rather than a client.

Somers v. Statewide Grievance Comm., 715 A.2d 712, 718 (Conn. 

1998) (cleaned up).

¶28 Accordingly, we hold that rule 3.4’s relevant portions 

plainly prohibit all attorneys, pro se or not, from (1) “assert[ing] 

personal knowledge of facts in issue except when testifying as a 

witness,” and (2) “stat[ing] a personal opinion” about any 

witness’s credibility. See Utah R. Prof’l Conduct 3.4(e). We 

discuss each prohibition in turn to determine whether Attorney 
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Bohman’s actions violated rule 3.4 and finally evaluate whether 

those violations warranted a new trial.

Asserting Personal Factual Knowledge

¶29 In interpreting rule 3.4, the trial court determined that 

Attorney Bohman violated the rule by asserting personal 

knowledge. But Appellants argue that interpreting rule 3.4 as 

prohibiting pro se attorneys from asserting personal knowledge 

of the facts fails to fulfill rule 3.4’s purposes and, thus, the rule 

should not apply to Attorney Bohman.4 We disagree. We reject 

Appellants unduly narrow rule 3.4 interpretation and conclude 

that interpreting the rule to apply to pro se attorney–litigants 

actually supports the rule’s purpose. See supra ¶ 27. 

¶30 The prohibition against attorneys asserting personal 

knowledge of the facts carries one exception. As pointed out, 

rule 3.4’s express language provides that a lawyer shall not in 

trial “assert personal knowledge of facts in issue except when 

testifying as a witness.” Utah R. Prof’l Conduct 3.4(e) (emphasis 

added). Obviously, if a pro se attorney is testifying as a witness, 

the pro se attorney may—indeed must—assert personal 

knowledge of the facts, as all witnesses must testify on the basis 

of their personal knowledge. Inversely, however, if an attorney, 

pro se or not, is not testifying as a witness, the attorney must not 

 

4. Appellants also argue that the trial court’s rule 3.4 

interpretation raises constitutional concerns. However, this court 

cannot identify anywhere in the record where Appellants argued 

before the trial court that the state or federal constitutions 

constrained rule 3.4’s interpretation. Appellants raised no 

applicable constitutional argument below so they cannot raise it 

now. See State v. Brown, 856 P.2d 358, 359 (Utah Ct. App. 1993) 

(“[C]ourts will not consider an issue, including a constitutional 

argument, raised for the first time on appeal . . . .”).
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assert personal knowledge of the facts. Thus, the rule’s plain 

language supports applying it to pro se attorney–litigants: the 

absence of any reference to pro se attorneys dictates that the rule 

applies to all attorneys regardless of pro se status, and because 

the rule includes a provision allowing attorneys to suggest 

personal knowledge when testifying under oath on the stand, 

the rule precludes all other exceptions. Unless testifying as a 

witness, an attorney may not assert personal knowledge—not 

during opening statement, not while examining witnesses, and 

not during closing argument.5

¶31 Rather than follow the rule’s plain language, Appellants 

request that we adopt an interpretation from a case looking at an 

entirely different rule—Utah Rule of Professional Conduct 3.7, 

which generally prohibits attorneys from also acting as 

witnesses. Specifically, Appellants rely on Beckstead v. Deseret 

Roofing Co., 831 P.2d 130 (Utah Ct. App. 1992), which explained 

that “[rule 3.7’s] prohibition against acting as a lawyer and a 

witness in the same case . . . does not apply when the lawyer is 

representing [her or] himself,” partially because the rule “does 

not address that situation in which the lawyer is the party 

litigant.” Id. at 134 (cleaned up). 

¶32 In contrast, rule 3.4 already accounts for the fact that some 

attorneys may also be witnesses in their own cases. Rule 3.4’s 

prohibition against suggesting personal knowledge applies only 

when that party is not “testifying as a witness.” Accordingly, a 

pro se attorney–litigant may suggest personal knowledge when 

under oath on the witness stand, when that attorney, like any 

other witness, is subject to cross-examination by the opposition. 

 

5. This interpretation also comports with the Utah Rules of 

Evidence, which strictly govern evidence admission, including 

witness testimony and statements made off the witness stand. 

See, e.g., Utah R. Evid. 601–617, 801–807.
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But a pro se attorney may not assert personal knowledge while 

previewing a case in opening statements, while questioning 

another witness directly or on cross-examination,6 or during 

closing arguments, where opposing parties have no opportunity 

to scrutinize that testimony before the jury. Any other 

interpretation would allow “a form of unsworn, unchecked 

testimony which tends to exploit the influence of the [attorney’s 

role] and undermine the objective detachment that should 

separate a lawyer from the cause being argued.” State v. 

Thompson, 2014 UT App 14, ¶ 51, 318 P.3d 1221 (cleaned up). In 

this sense, the exception—which allows pro se attorneys to 

testify on their own behalf while on the stand—actually 

reinforces the rule that a pro se attorney may not assert personal 

knowledge at any other time because the rule has already built 

in an escape-hatch for those pro se attorneys who, to testify, 

must of necessity assert personal knowledge.

¶33 In the present case, the trial court found that Attorney 

Bohman consistently and egregiously violated rule 3.4 during 

his opening and closing statements. And, as a result, the court 

characterized his message to the jury as essentially stating, 

“[Y]ou don’t have to listen to [Appellees] because I was there 

and I know the truth.” And we do not conclude that the trial 

court clearly erred in finding that Attorney Bohman egregiously 

violated rule 3.4 on numerous occasions. As one example, 

during closing, Attorney Bohman stated, “I at all times operated 

in good faith.” We have searched the trial transcript and failed to 

find any remotely similar phrase in Attorney Bohman’s actual 

testimony. We fail either because the phrase, or something like 

 

6. For an example of this, see Holt v. Commonwealth, 219 S.W.3d 

731 (Ky. 2007), where the prosecutor repeatedly asked leading 

questions that implied to the jury that the witness had already 

told the prosecutor that the defendant was guilty. Id. at 733–34.
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it, does not exist or because he did not supply it to us. Either 

scenario is problematic. In the event he failed to provide it, we 

are unable to consider this as potentially justifying his words. Cf. 

Horton v. Gem State Mutual of Utah, 794 P.2d 847, 849 (Utah Ct. 

App. 1990) (“Absent the trial transcript, appellant’s claim of 

error is merely an unsupported, unilateral allegation which we 

cannot resolve.” (cleaned up)). But if he did not testify to that 

effect on the witness stand, this example illustrates the problem. 

Although we do not require a pro se party to recite a specific 

talismanic incantation when previewing or referring back to 

testimony during opening and closing statements, presenting 

something new or different that was not elicited on the witness 

stand becomes improper testimony not subject to oath or crossexamination. See Thompson, 2014 UT App 14, ¶ 51.

¶34 We appreciate the burden placed on individuals who 

must keep their roles of witness and attorney distinct. But 

Attorney Bohman’s direct, first-person narrative, devoid of any 

indication that he was merely referencing sworn testimony, 

provided a sound basis for the trial court to find that Attorney 

Bohman violated rule 3.4’s prohibition against asserting personal 

knowledge. Accordingly, the trial court correctly interpreted rule 

3.4. Having reviewed the record, we see no basis to conclude 

that the trial court clearly erred in finding that Attorney Bohman 

violated rule 3.4; nor do we conclude that the trial court abused 

its discretion in deciding that these irregularities justified a new 

trial under Utah Rule of Civil Procedure 59.

Credibility Comments

¶35 The trial court also found that Attorney Bohman violated 

rule 3.4 by offering his personal opinion on witness credibility. 

Attorney Bohman contends that the trial court abused its 

discretion in that ruling because his statements did not actually 

violate the rule. We disagree.
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¶36 Rule 3.4 prohibits attorneys from offering “personal 

opinion” about “the credibility of a witness.” Utah R. Prof’l 

Conduct 3.4(e). Generally, no witness may comment on the 

credibility of another witness. See Utah R. Evid. 608(a); Blackhawk 

Townhouses Owners Ass’n v. J.S., 2018 UT App 56, ¶¶ 47–50, 420 

P.3d 128 (“Asking a witness to comment on the veracity of 

another witness is improper.” (cleaned up)); State v. Perea, 2013 

UT 68, ¶¶ 37–39, 322 P.3d 624. Specifically, one witness may not 

testify about another witness’s veracity on a particular occasion.7

State v. Harmon, 956 P.2d 262, 271 (Utah 1998) (“[O]ne witness 

may not testify as to the credibility of statements made by 

another person on a particular occasion.”); State v. King, 2010 UT 

App 396, ¶ 44, 248 P.3d 984. The pro se status of an attorney–

litigant provides no license to depart from, or to hedge, this 

general rule.8 Although attorneys may argue that a jury should 

question a witness’s veracity “if it is a conclusion that the jury 

could have reasonably inferred from the evidence[,] . . . such 

comments are improper when the jury could reasonably believe 

that the [attorney] was indicating a personal belief in the 

witness’s credibility.” State v. Thompson, 2014 UT App 14, ¶ 52, 

318 P.3d 1221 (cleaned up). So, the question is whether Attorney 

Bohman’s words actually constituted impermissible personal 

opinion. 

¶37 Appellants argue that Attorney Bohman’s comments were 

not expressions of personal opinion but deductions based on the 

 

7. Indeed, even the trial judge is precluded from commenting on 

“the credibility of a witness’s testimony.” See State v Taylor, 2005 

UT 40, ¶ 22, 16 P.3d 360.

8. Despite significant effort, we have been unable to identify a 

single case discussing whether a pro se attorney–litigant may 

comment on credibility.
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evidence. Appellants rely on multiple cases in which courts have 

reviewed similar contested statements in context and 

characterized the comments as permissible statements about the 

evidence presented, in that the statements simply highlighted a 

reasonable inference that the jury could draw from the evidence 

presented. See, e.g., State v. Bakalov, 1999 UT 45, ¶ 57 n.9, 979 P.2d 

799 (agreeing with the trial court that rather than providing a 

personal opinion, the prosecutor merely argued the evidence 

and that it was so compelling that the jury could come to a 

particular conclusion); State v. Clark, 2014 UT App 56, ¶¶ 36–39, 

322 P.3d 761 (holding that, despite “suggesting that [a 

defendant] had a motive to lie and that [the defendant’s] 

explanations were a ‘fabrication,’ an ‘absurdity,’ ‘convoluted,’ 

and ‘tortured,’ the prosecutor disclosed only what the jury could 

have reasonably inferred from the evidence” (cleaned up)); State 

v. Cummins, 839 P.2d 848, 852–54 (Utah Ct. App. 1992) (holding 

that “the prosecution’s statements were no more than reasonable 

inferences based upon the demeanor of the witness and the fact 

that, before testifying, the witness was required to take an oath 

of honesty”).

¶38 We of course agree that attorneys may make permissible 

statements based on the evidence, but they may not simply voice 

a personal opinion that is untethered from the evidence. Thus, 

the fact that a deduction might flow from the opinion, or that the 

evidence may support a similar deduction, is not the point. See,

e.g., State v. Spencer, 49 P. 302, 305 (Utah 1897) (determining that 

a prosecutor’s statement, “I have been convinced of his guilt” 

was improper); State v. Ringstad, 2018 UT App 66, ¶¶ 65–66, 424 

P.3d 1052 (concluding that a prosecutor’s statement that “I think 

that’s despicable” constituted a personal opinion); see also Harne 

v. Deadmond, 1998 MT 22, ¶ 9, 954 P.2d 732 (holding that 

counsel’s sharing a personal experience he had with the 

defendant, and in essence “testifying” to his character, was 

improper). Here, the trial court determined that Attorney 
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20190867-CA 22 2021 UT App 35

Bohman’s statements constituted improper personal opinions. 

We agree. Again, we need not define particular magic words 

that designate a statement as a permissible deduction from the 

evidence as opposed to an impermissible opinion that is 

untethered from the evidence, but here, no linguistic cues 

suggest these statements composed deductive reasoning.9

¶39 During Attorney Bohman’s opening statement, while 

sharing his narrative, he said, “It was at this point in time I 

realized I was probably dealing with an absolute crook.” Phrases 

like “I realized,” “I was probably,” and “absolute crook” all 

indicate to us that Attorney Bohman propounded his personal 

opinion. Indeed, absent some objective way for the jury to define 

an “absolute crook,” characterizing another witness as such is 

nothing but an opinion.

¶40 In closing, Attorney Bohman stated, “[T]he mistake I 

made in my dealings, I think the evidence shows, is that I treated 

. . . Gilbert as if he was an honest businessman.” Here, phrases 

like, “mistake I made,” “I think the evidence shows,” and “as if,” 

all indicate that Attorney Bohman shared a personal opinion. 

While the words, “the evidence shows,” present no problem, we 

can think of no clearer words than “I think” to indicate that the 

speaker shared an opinion. Such words necessitate that 

whatever follows is the attorney’s own personal opinion and not 

merely a deduction supported by the evidence. The trial court 

 

9. Appellants also assert that Attorney Bohman’s statements 

were not improper and that his stylistic choices in his opening 

and closing statements—namely the direct, first-person narrative 

style—constituted, at most, technical violations of rule 3.4. 

However, as explained, Attorney Bohman’s behavior violated

rule 3.4, and language matters when a party is attempting to 

comply with rule 3.4(e)—particularly when acting in tandem 

roles as attorney and party.
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saw it no differently. When Appellees objected to this statement, 

it sustained the objection and, making good on its sidebar 

warning, terminated Attorney Bohman’s closing argument. See 

supra ¶ 16.

¶41 We need not rehash the other examples from trial. In the 

trial court’s order granting a new trial, the court recounted that 

Attorney Bohman made “statements as to the credibility of the 

witnesses setting forth in anticipatory strike against the 

credibility specifically of . . . Steve Gilbert.” We see no basis to 

second-guess the trial court’s determination that Attorney 

Bohman violated rule 3.4’s prohibition against commenting and 

opining on witness credibility. Partly on this basis, the court 

granted a new trial because “the fairness of [the] trial had 

reasonably [been] called into question” and because “it is 

reasonably likely that a different result would have occurred had 

those irregularities and improper conduct not taken place.” See 

generally Utah R. Civ. P. 59. Accordingly, we hold that the trial 

court did not abuse its discretion in relying on these grounds in 

granting a new trial under rule 59.10

 

10. Appellants also contend that the trial court erred in ruling 

that Attorney Romero vouched for Attorney Bohman and 

thereby violated rule 3.4. Although rule 3.4 does prohibit 

attorneys from expressing personal opinions regarding witness 

credibility, see Utah R. Prof’l Conduct 3.4(e), we believe the trial 

court misperceived Attorney Romero’s statement. Attorney 

Romero’s full statement reads, “[W]hen you find out that you 

were wrong, you correct the record. That’s what an honest 

person does, and that’s exactly what Brent does.” The trial court 

concluded that this statement constituted inappropriate 

vouching. We disagree. In context, Attorney Romero’s statement 

is devoid of the problematic features attendant to Attorney 

Bohman’s statements; we view this statement in context as a 

(continued...)
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II. Utah Rule of Civil Procedure 59

¶42 Utah Rule of Civil Procedure 59 section (a)(1) allows the 

court to grant a new trial based on an “irregularity in the 

proceedings of the court, jury or opposing party, or any order of 

the court or abuse of discretion by which a party was prevented 

from having a fair trial.” Utah R. Civ. P. 59(a)(1). Rule 59(d) 

provides that “the court, on its own, may order a new trial for 

any reason that would justify a new trial on motion of a party” 

and that “the court may grant a timely motion for a new trial for 

a reason not stated in the motion.” Id. R. 59(d). This rule 

therefore explicitly allows the court to grant a new trial sua 

sponte, or for reasons other than those raised in the motions—as 

long as it provides the reasons. See id. And importantly, nothing 

prevents a court from viewing a violation of the Rules of 

Professional Conduct as the basis for an irregularity in the 

proceedings warranting a new trial under rule 59.

¶43 In addition to arguing that the trial court misinterpreted 

rule 3.4 in finding that violations of that rule presented an 

irregularity justifying a new trial, Appellants also contend that 

Attorney Bohman’s statements could not have been prejudicial 

because other evidence on the record would have been more 

damaging and because the jury was necessarily aware that 

Attorney Bohman, as a party, had personal factual knowledge.

 

(...continued)

deductive statement or “a conclusion that the jury could have 

reasonably inferred from the evidence.” See State v. Thompson, 

2014 UT App 14, ¶ 52, 318 P.3d 1221 (cleaned up). However, 

because Attorney Romero’s statement does not appear to be the 

straw that broke the camel’s back in justifying a new trial, we do 

not believe the trial court’s misstep on this issue affected the 

outcome. The trial court justifiably granted a new trial under 

rule 59 based on the other irregularities it identified in its ruling.
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20190867-CA 25 2021 UT App 35

¶44 However, we conclude that the trial court appropriately 

considered the case’s circumstances “as a whole.” See State v. 

Troy, 688 P.2d 483, 486 (Utah 1984); see also State v. Lomu, 2014 UT 

App 42, ¶ 22, 321 P.3d 235. Based on the totality of the 

circumstances, the court granted a new trial because the trial’s 

fairness “ha[d] reasonably been called into question” by the rule 

3.4 violations that the court “specifically observe[d] during the 

trial,” making it “reasonably likely that a different result would 

have occurred had those irregularities and improper conduct not 

taken place.” As explained, we conclude the trial court correctly 

interpreted rule 3.4 and correctly found that Attorney Bohman 

violated this rule. We also have no doubt that Attorney 

Bohman’s consistent, egregious violations not only called into 

question, but in fact impacted, the trial’s outcome. But even if we 

had such doubts, where we have “no way of knowing precisely 

what effect [Attorney Bohman’s] remarks [or involvement with 

the case] had on the jury . . . , we must give great deference to the 

trial court, which is in a much better position than this court to 

evaluate the parties’ conduct, the context in which the 

irregularity occurred, and the jury’s reaction to the statement.” 

See Child v. Gonda, 972 P.2d 425, 430 (Utah 1998) (cleaned up). 

Accordingly, the trial court properly exercised its discretion to 

grant a new trial here.11

 

11. Although the trial court instructed the jury that Attorney 

Bohman’s remarks were not evidence, “curative instructions are 

not always sufficient to avoid the potential prejudice,” and we 

will not disturb the trial court’s estimation about whether its 

curative instructions sufficed. See State v. Wetzel, 868 P.2d 64, 69 

(Utah 1993); see also State v. Bujnowski, 532 A.2d 1385, 1388 (N.H. 

1987) (“[S]uch intentional, repetitive misconduct may well have 

rendered the court’s curative instructions meaningless.”).
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CONCLUSION

¶45 The trial court properly interpreted rule 3.4, and did not 

exceed its discretion in granting a new trial based on the impact 

of Attorney Bohman’s many rule 3.4 violations.

¶46 Affirmed.