Category Archives: Uncategorized

WHAT ABOUT PROFESSIONAL CIVILITY IN THE LAW?

The subject of professional civility has been widely discussed and promoted in the past few years. Some states have incorporated the requirement in their oath of attorneys. All of the states  have emphasized it in recent years.  The United  States Supreme Court, the ABA and even The National Judicial College promote the principles of civility. Here, for  example,  is part of the language of the core principles from the Judicial College written for judges  nationally:

“Civility encompasses a form of courtesy and behavior and speech that is essential to the role of courts in a democratic society. It is therefore, important that all involved with the court – judges, attorneys, jurors, witnesses, court staff, parties – act with civility to ensure the fair administration of justice and resolution of disputes… Civility in action and words is fundamental to the effective and efficient functioning of our system of justice and public confidence in that system.”

With this in mind let us consider the appropriateness of language of lawyers who disagree with opinions of appellate courts.  Here is a collection of lawyer’s written comments about holdings of appellate courts with which they disagree. What do you think? Is this language in compliance with the promotion of professional civility in language? Would this language merit a reprimand for professional lack of civility in your view?

  • “But, the court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining to be memorable passages of the opinion is a candid and startling assertion…”
  • “But, what really astounds is the hubris reflected in today’s judicial Putsch is…”
  • The opinion is couched in a style that is as pretentious as its content is  egotistical. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the court to do so.”
  • “Of course the opinions showy profundity’s are often profoundly incoherent.”
  • “The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this court’s reputation for clear thinking and sober analysis.”
  • “Today’s interpretation is not merely unnatural; it is unheard of.”
  • “…The court comes up with argument after feeble argument to support its contrary interpretation. None of this tries to come close to establishing the implausible conclusion that…”
  • “The courts next bit of interpretive jittery – pokery involves other parts of the act…”
  • “For its next defense of the indefensible, the court turns to…”
  • “Some might conclude that this loaf could have been used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the courts nonspecific handwaving is that this law is invalid…”
  • “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement… is not at issue here – when  what has preceded that assurance is a lecture on how superior the majority’s moral judgment is…”
  • “The only thing that will confine the court’s holding is that sense of what it can get away with.”
  • “But, the court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes with a fair  defeat.”
  • “The court tries to palm off the pertinent statutory phrase as in artful drafting.”
  • “The court is eager – hungry – to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against the judge’s intrusion into their life’s.”
  • “That is jaw-dropping. It is an assertion of judicial supremacy…”
  • “There are many remarkable things about the majorities merits holding. The first is how rootless and shifting its justifications are.”

Well,  what do you think? In your state, if you wrote these statements in a motion for reconsideration or a blog or a letter to the editor do you think there would be repercussions? Or do you think that at a minimum you would be regarded by fellow lawyers and the judiciary as an ill mannered radical who needs to have  retraining in professional conduct and words?

These are all statements of Justice Scalia in two recent dissents as a Justice of the United States Supreme Court. He is a member of this nation’s highest court standing  for  principles of  rational discussion and civility so  how can he justify language  like this from his marriage equality dissent:

“I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph story to the mystical aphorisms of a fortune cookie.”

Justice Scalia has proven himself to be nothing more  than a rude and  arrogant bully. He has shown that he  takes  pleasure  in his lack of professional manners in how he treats lawyers who appear before the Court. He has  never seen a conflict of interest  in his relationships and judicial role. He has  repeatedly demonstrated his unrestrained bias in his judicial rulings and he  has continuously attacked his fellow Justices in  his unprofessional ridicule contained  in his  writing.

What he did correctly report in his  dissent of the ruling in the  marriage equality opinion  was how unrepresentative some members of the court are  to the people of the United States:

“…and to allow the policy question of same sex marriage to be considered and resolved by a select,  patrician, highly unrepresentative panel of nine is to violate a principal even more fundamental than no taxation without representation: no social transformation without representation.”

This court,  as  it is presently constituted, is not representative of the people because of biased and opinion members like Justice Scalia, Justice Alito and Justice Thomas. That I do agree with him about.

THOUGHTS ABOUT AVOIDING A 15 MINUTE DEFENSE JURY VERDICT

The Seattle Times reports that a King County jury reached a unanimous verdict for the defendant after a seven day personal injury  trial, taking only 15 minutes to reach a verdict.

Disclaimer: The only thing I know about this case is what I read in the newspaper so I am using this as an illustration and making assumptions in an effort to learn from this event.

The newspaper reports that plaintiff was a 51 year old woman who sued the city of Seattle asking damages for injuries suffered when the police handcuffed her after a hit and run incident. She had been arrested after two Seattle police officers responded to a report of a hit and run collision involving her company van and a  parked car. She was arrested and charged with hit and run of an unattended vehicle. She claimed during the arrest the police “yanked” her right arm behind her back causing excruciating pain and seriously damaging her right shoulder. She was a janitor and claimed that the injuries incapacitated her so that she could not mop, wax, vacuum, garden or make her bed. She testified that she needed help from her husband and daughter to do basic tasks almost every day. She claimed disability in her right shoulder, arm and hand.

According to the newspaper there were some significant problems with her case.  To start with, there was a patrol car video.  The video did not show her being handcuffed, but it did show her sitting calmly on the bumper of the patrol car and then being equally calm in the back of the car. She did not appear to be distressed or in pain.

In addition,  the plaintiff was born in Bosnia and had difficulty with English. But, apparently the most damaging part of the defense was a video taken of her by a private investigator hired by the city. The video showed the plaintiff driving, shopping, pulling open a glass door with her right injured hand and carrying packages in her right hand as well. She was videoed carrying numerous large bags in her right hand from a store to her car.

It is significant too, that her lawyer asked the jury for $1 million dollars which the jury took 15 minutes to reject and to reject her entire case.

Here, the plaintiff was suing the police for abuse. No matter what the publicity about police abuse there remains a sizeable percentage of jurors who generally believe the police can do no wrong and only guilty people get arrested.  They deserve  what they get in these juror’s minds. I think you start with a  difficult job in voir dire finding jurors who are not biased in these cases. The problem is you don’t have enough time to do a proper job.

Immigration is a hot stove issue in this country. We have a woman who wasn’t born here and doesn’t speak English well. That’s enough to light up a bias in  a number of jurors. This too, is something that needs to be discussed in  jury selection  and covered in your case in chief.

What about the video’s that were shown to the jury? Nothing  is  more damaging than a claim of  serious injury and photos immediately after the claimed injury, at the scene, which show otherwise. What are you going to believe, the physical evidence or  explanations? Here is a subject  that needs to be opened by the plaintiff in jury selection and covered in opening to inoculate against the jury reaction. But, on top  of that we have a private investigator videoing her doing things she claims she can’t do.

The fact is we have to deal with secret videos more often these days. The key is early discovery of their existence and the discovery deposition of the investigator. Next, we need to fully explore the issue in jury selection plus deal with it in opening by showing it yourself and inoculating against the drama of seeing for the first time. We need to show it to the plaintiff in direct and ask about it. It becomes a race to tell the  truth first with defendant. And, if a poor job is done in these regards, a request by the plaintiff for an amount large enough the jury finds it really inappropriate you get an emotional backlash from the jury.

So, based only on my description and without knowing the actual facts, we have a case of non fracture and what is essentially a soft tissue damage claim which drug  out for seven days. A woman who appears  to have been dramatically impeached by video and who doesn’t speak English well to explain it. A suit against the city and its police asking $1 million dollars. Tax payers on  the jury  and really difficult issues. These facts require really careful and extensive discovery, motions in  limine, a skillful voir dire and a carefully focused  trial. Even then the odds are not good for the plaintiff. I’m sorry about the result  and would assume this was a case most lawyers  would  have trouble winning.

GIVING CREDIT TO DAVID BALL

On April 18, 2015 I published an article from Don Keenan’s blog on short trials because I thought it had such a profound truth which I agreed with. Unfortunately, I gave the credit for the article to my friend Don when the author was my friend David Ball. So, I write this to correct my error and give credit to David where it belongs and my thanks to Don for publishing it. Sorry, David. Great article.