I haven’t seen a lot of decisions like the Appellate Division, First Department’s decision in Binder v. Miller.  The case concerned a dental malpractice action, and during summations the plaintiff’s attorney called the defendant’s expert witness a litigation witness.  The defendant’s attorney preserved the objection for appellate review but was restricted from objecting during the summation of the plaintiff’s attorney.   The Court held that the remark was better left unsaid but did not warrant a new trial.

The takeaway point of the case is that the Court reminded the Supreme Court Justice that directing counsel that "there is to be no objecting in the middle of summations," is inappropriate.

Attorneys have their own rules about objecting during openings and closings (always with an eye toward not looking obstructive in front of the jury).  This case provides a good lesson for attorneys to keep their wits about them when a judge does something that warrants appellate review, making sure to do something to preserve the issue for appellate review.