Civility among lawyers, especially the lack thereof, remains a hot topic to the bar. We all decry incivility. But it continues.
Yet, the majority of the lawyers we meet all seem decent sorts. So you wonder, who are these other guys?
Well, the incivil are still out there. And they’re getting themselves into trouble.
Mano-a-mano can get you 90 days in jail.
One offending lawyer is Austin, Texas criminal defense lawyer Adam T. Reposa. He got slapped with a contempt order and 90 days jail time for an especially lewd gesture in the courtroom of Travis County Judge Jan Breland. Reposa says that although he was staring at the judge when he hand-mimicked masturbation, he maintains the obscene gesture was meant for the prosecutor not the court. I guess that makes it alright.
Reposa unsuccessfully appealed the contempt order and hoosegow time. Doubtless, a bar disciplinary proceeding is next.
An affront to the dignity of the court.
The Texas Criminal Court of Appeals (AP-75,965) handed down its decision October 28, 2009. Describing the offense, the court cited Judge Breland’s testimony, that “after Swaim [the prosecutor] had protested that the applicant continued to whisper in his client’s ear, [The applicant] was standing a couple of feet from the front of the bench and, very clearly, I could see his right hand at his – a few inches from his waist and his hand was in sort of a fist and he moved his hand very quickly up and down for maybe five times. And as he did that, his eyes were rolling . . . and he was looking at me.”
At the contempt hearing, the applicant described his acrimonious relationship with prosecutor Swaim and said that his gesture was directed at Swaim. He said that his intent at the time had been to communicate to Swaim “that I thought that at that point, he was just talking to himself and masturbating.” The applicant agreed the gesture was disrespectful and out of line. Regardless of the fact that the gesture was not directed at Judge Breland, it nevertheless was a purposeful act of disrespect and an affront to the dignity of the court. As such, it rises to the level of criminal contempt. We find the evidence to be sufficient to support the judgment of contempt.
Another day, another jurisdiction, another lapse of civility.
Out of Pennsylvania Eastern Federal District Court comes yet another recent instance of lawyers acting badly. No surprise but the incivility arose during a deposition where lawyer Lewis Hannah called opposing counsel James Ellison “an asshole” 4 times. On a motion for sanctions, U.S. District Court Judge Gene E.K. Pratter’s creative solution to the deposition antics was not jail or monetary sanctions.
Instead, the court ordered coerced-dining between the adversaries. No right to freedom of association here as the judge commanded Hannah and Ellison to “join each other for an informal meal in an effort to facilitate the repair of their professional relationship.” Judge Pratter also ordered Hannah to additional penance, a CLE course on civility and professionalism. Better to break bread than heads is the apparent reasoning. The case is Huggins v. Coatesville Area School District.
The heat of battle excuse.
With less than 10% of cases ever going to trial, aggressive depositions have become substitutes for trial to some lawyers. So enfranchised to any kind of combat they think they’re entitled to be ever-zealous discovery warriors. But more often than not, it’s not advocacy. It’s name-calling between grade-schoolers.
Lawyers excuse deposition misconduct as simply a matter of losing themselves in the heat of battle. All’s fair in love, war, and discovery. And a little aggressiveness, a little rule-skirting, and a little name-calling seems almost de rigeur.
A final instance of deposition personal attacks is in the following excerpt recently posted on YouTube. Far as I know, unlike the Huggins case,the name-calling here didn’t rise to dining-by-prescription.