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Court of Appeal Rebukes "Lack of Courtesy and Decorum" in the Courtroom -- on the Part of the Trial Judge:

From the California Court of Appeal in Haluck v. Ricoh Electronics

Somewhere midpoint in trial, in overruling one of plaintiffs’ objections, the judge held up a hand-lettered sign, apparently prepared by him, stating “overruled.” The next day, when the court overruled another of plaintiffs’ objections, defendants’ attorney presented the judge with a different sign, stating: “Your honor, I want to help you if I may. This is a much nicer version. [¶] The Court: Better than my homemade one. [¶] Ms. Reinglass: Plaintiffs object to Mr. Callahan presenting another ‘overruled’ sign to the court. The court’s sign was adequate enough. [¶] The Court: The court will await receiving a ‘sustained’ sign from plaintiff[s] so we can split the benefits here. [¶] Ms. Reinglass: How many do I get?”

A week later, when plaintiffs’ lawyer objected to a question, the court apparently used Mr. Callahan’s “overruled” sign. “Ms. Reinglass: [I am objecting to a]ny reading of the document not in evidence. [¶] The Court: He’s not reading, [he’s] asking questions. [¶] Ms. Reinglass: Hopefully he won’t read. [¶] The Court: And hopefully he won’t keep talking. [¶] Mr. Callahan: Your honor, I didn’t get a chance to make that. [¶] The Court: It took too much time to make that sign. [¶] Ms. Reinglass: And there’s a sign, and I object to that. [¶] The Court: He is directing it to me. It’s lightening things up. And the jury nods.”

Midway into the trial, the court stated, “Jeffrey [the clerk], we’re going to the soccer style method here. Red card, 50 bucks each. Okay. If I say, red card plaintiff, write it down, 50 bucks. Red card defense, 50 bucks. [¶] We’ll keep a running tab. End of trial, we’ll collect it from them and we may take you guys [presumably the jury] to lunch at a very nice place. Okay. Court has enough money for now, and that will either stop the talking or give you a very nice lunch.” (Italics added.)

Over the next 20 pages of transcript, during which plaintiff Litton was being examined, defendants’ lawyer raised at least nine objections, six of which were overruled, with no mention of a red card. Then, when plaintiffs’ counsel stated she was reading the last portion of a deposition, defendants’ counsel stated, “Very good. [¶] . . . [¶] I probably shouldn’t say very good. No objection.” The court states, “That’s an orange card, not a red card.”

During the next 12 pages or so in the transcript, defendants’ lawyer made three objections, two of which were overruled. As plaintiffs’ lawyer continued her examination of Litton, she noted she was almost finished with a section. Defendants’ counsel stated “352.” The court responded, “351 and a half. [¶] Go ahead.” After several questions, defendants’ lawyer stated, “351 and three-quarters,” to which the court replied, “Overruled. Numbers junky.” No red cards were mentioned.

Over the next 10 pages of transcript, defendants’ lawyer raised two more objections, one of which was overruled. Defendants then interposed a hearsay objection. The court asked, “We’re going to have [the expert witness] testify, right? [¶] Ms. Reinglass: Pardon me? [¶] The Court: We’re going to have him testifying, right? [¶] Ms. Reinglass: Yes. [¶] The Court: And [Litton] is testifying to his numbers pretrial and questioned on the complaint and not about experts and discovery, so we’ll wait for the expert to tell us what those numbers were and how had he arrived on them. [¶] Sustained. [¶] Ms. Reinglass: May I? [¶] The Court: Red card plaintiff, Jeffrey. [¶] Ms. Reinglass: I was asking. [¶] The Court: 5-0. Next question.”

In testifying as to his emotional distress, Litton stated that he felt like he was in a white room without doors or windows that had no boundaries. On cross-examination as to this testimony, the following exchange occurred:

“Mr. Callahan: Q Have you ever heard of The Twilight Zone?” [¶] A Yes sir. [¶] Q Goes kind of like this, do do, do do. [¶] Ms. Reinglass: Your Honor, I would just object. This is argument. [¶] The Court: Your objection’s on the record, ma’am. [¶] Ms. Reinglass: Also improper argument. [¶] Mr. Callahan: You’re traveling through another dimension, a dimension not only of sight and sound, but of mind, a journey into a wondrous land, whose boundaries are that of imagination[;] that’s a sign post up ahead, your next stop, The Twilight Zone. Do do, do do. Do do, do do. [¶] The Court: That was terrible. Get to the question, please. [¶] Ms. Reinglass: Noting for the record, counsel was singing The Twilight Zone theme song. [¶] The Court: And how the jurors left it will be reflected on the same record. [¶] By Mr. Callahan: Q Endless white room with no doors or windows. [¶] Is that where you got your idea of this white room theory? [¶] . . . [¶] A From where? [¶] . . . [¶] The Court: Twilight Zone. That’s his question. [¶] The Witness: No sir. [¶] Mr. Callahan: Do do, do, do. Do do, do do. [¶] Ms. Reinglass: I request that counsel stop singing. As entertaining as it is for the jury, it’s mocking my client and mocking the trial. [¶] By Mr. Callahan: Q Ever heard of The Twilight Zone, the show? [¶] A Yes sir. [¶] The Court: For the record, he hit a few notes of The Twilight Zone theme song which I don’t see as mocking. He was off color [sic]. [¶] Mr. Callahan: I go through life tone deaf and colorblind. This is tough.” . . .

There's more; see here for details. The Court of Appeal's conclusion (again, see the opinion for its supporting arguments): 'Judicial ethics require a judge to 'be patient, dignified, and courteous to litigants . . . [and] . . . lawyers . . . and . . . require similar conduct of lawyers . . . under the judge’s direction and control.' (Cal. Code Jud. Ethics, canon 3(B)(4).) The delineated exchanges between the court and counsel are the antithesis of judicial decorum and courtesy."

Thanks to Jeremy Ross for the pointer.

George Lyon (mail):
Apparently this is not the only instance of the judge's misconduct. See: http://cjp.ca.gov/PubAdm/Brooks%20JM%2011-29-06.pdf
6.7.2007 6:06pm
Kenvee:
I'd love to read the defendant's brief on this, considering every time the court quoted from it, they had to note that bold, italics, and underscore were all deleted. I'm very curious what this thing looked like!

I can't believe any judge would actually think this was appropriate courtroom behavior. While I've certainly seen plenty of casual behavior and joking around during docket or hearings, at a jury trial everyone is always on their best behavior.
6.7.2007 6:13pm
anonVCfan:
As David Lat would say, this is another example of icky state court judges and their shenanigans
6.7.2007 6:22pm
Christopher Cooke (mail):
That is why Mr. Lat will never run a "State Court hotties" contest for them.
6.7.2007 7:11pm
Armen (mail) (www):
But a courtroom is not the Improv and the presider's role model is not Judge Judy.

I mean it's one thing to be reversed for misapplying precedent, but getting reversed for being too much like Judge Judy...that's gotta bruise the ego. Red Card...$50.
6.7.2007 7:27pm
Public_Defender (mail):
If the opinion fairly describes the trial and the appeal, the defendants' appellate attorney (Jim P. Mahacek ) exercised some very poor judgment. Not only did Mahacek bold, underline and allcap a snide remark, but he asked for sanctions because the plaintiffs' appeal was supposedly frivolous.

Jim Mahacek appears to be a well-established civil defense attorney. Remember this case the next time you hear someone complain about so-called "frivolous" lawsuits and "frivolous" appeals.
6.7.2007 8:59pm
NickM (mail) (www):
Jim Mahacek, and his firm, Callahan &Blaine, are not what would be called civil defense attorneys. The firm started off with a specialty in plaintiff's insurance bad faith cases, and much of its practice is plaintiff's tort cases.

I've seen worse misconduct (including a Commissioner who routinely invited sertain attorneys to breakfast in chambers with him before proceedings started, and then acknowledged on the record that he had to agree with one of those attorneys because he had seen him in court hundreds of times before), but Judge Brooks seriously needs to rethink what he's doing on the bench.

Nick
6.7.2007 9:44pm
Public_Defender (mail):
You're right. Sorry. I saw the following on his web page and got the wrong impression:


• Defeated sexual harassment claims
• Defeated the Insurance Commissioner's claim against an insurance executive
• Defeated a multi-million dollar premises liability claim
* * *
• Court of Appeals declared that city government unlawfully interfered with property owner's rights


On closer look, it should have been clear that he probably spends more time fighting insurance companies than defending them, but it does appear he plays both sides.

My main point stands. Just because an advocate calls a claim frivolous, doesn't mean it is.

Back to the topic. I wonder if Mahacek was trial counsel. Sometimes attorneys lack the critical judgment to appeal their own trials. If he had been able to see the flaws in his case, maybe he could have dealt with them instead of exacerbate them.
6.7.2007 10:00pm
PatHMV (mail) (www):
I once watched a federal criminal trial when I was a law clerk at a U.S. Attorney's Office. The defense attorney was one of the more obnoxious of the species, and prominently known for being so. The judge was rather old and quite dour.

During the middle of the trial, the local paper came out with the results of a survey they had worked on extensively for many months, in which they asked local lawyers, anonymously, for their opinions of the local judges. This judge scored quite low in popularity, and was widely derided as being utterly humorless, among other things. He apparently decided to prove all those anonymous lawyers wrong.

Now, the defense attorney had a bad habit of approaching the witnesses, ostensibly to show them documents, without asking permission of his Honor first. The judge had corrected him on it regularly, to no avail. Anyway, the day the survey results came out in the paper, the attorney started walking up to the witness again, without permission.

The judge whipped out a yellow football penalty flag and tossed it at his feet, right in front of the jury.
6.7.2007 11:33pm
Hattio (mail):
The breakfast is pretty bad. I had a friend tell me that a judge in a small texas town used to start trials this way;

Is the Defense ready?

Yes your honor.

Are We Ready?
6.7.2007 11:39pm
Dave N (mail):
Reminds me of a sweatshirt my wife got me:

"A Good Lawyer Knows the Law; A Great Lawyer Knows the Judge"

Seriously, though, I am amazed at the number of judges with "black robe fever" who appeared to learn courtroom procedure from Judge Ito and Judge Wapner.
6.8.2007 1:45am
LongSufferingRaidersFan (mail):
Dave N: I prefer the term "judgeitis" The judge in the Ana Nichole Smith trial (I forget his name, David Carter or something like that I think) had a particularly bad case of this--a truly worthless pile of garbage who treated lawyers and litigants like Xerxes treated his servants in the movie "300"
6.8.2007 11:17am
JosephSlater (mail):
I keep coming back to the "I request that counsel stop singing" line. I practiced for over a decade, and never heard that one.
6.8.2007 11:31am
mariner (mail):
When I saw a few minutes of People's Court and Judge Judy I was repelled. I believed their lack of decorum would reduce people's respect for the law and the judicial system.

Now it looks like some judges believe it's OK to emulate them.

sigh
6.8.2007 5:03pm
Edward A. Hoffman (mail):
Public_Defender wrote:
I wonder if Mahacek was trial counsel.
He wasn't. The trial attorney was the firm's senior partner, Dan Callahan.

I worked with some other lawyers from Callahan and Blaine on a shareholder derivative case a few years ago and found them to be a very talented group. Dan Callahan is one of the most highly-regarded trial lawyers in the state. He's certainly no defense hack, having won a plaintiff's judgment in excess of $900 million in 2003. He's also no amateur. He was named California Trial Lawyer Of The Year in 2004 and the National Law Journal listed him as one of the top ten lawyers in the U.S. the same year.

Jim Mahacek is an appellate specialist, though he also practices in the trial courts. He's quite good at what he does.

Having once lost a case after seeking sanctions for a frivolous appeal myself (though I at least got a dissenting justice to agre with me), I won't judge Jim too harshly. The courts and the lawyers sometimes see the same case in radically different ways, and I have seen courts make some pretty weird decisions. I'll bet that Jim's position was well-supported even though he ended up losing.
6.8.2007 7:40pm