Let the TV Lawyers Handle the Pyrotechnics

Reading about California lawyer Don Howarth’s apparent effort to trick a witness in a court case, I couldn’t help but think about old TV shows where lawyers prove that a plaintiff doesn’t have whiplash by dropping a heavy book on the floor. The plaintiff turns his head, the injury is revealed as fake, and the book-laden lawyer wins his case. Howarth brought that old ploy into the new millennium by incorporating somewhat more advanced technology in an apparent effort to discredit testimony.

As reported by AP and in multiple venues (see, e.g., Joe Patrice, Shocking Testimony!Literally—Lawyer Administers 75-Volt Shock To Witness, Above the Law, May 6, 2014; Martha Neil, Lawyer must pay witness $1K for shocking him with trick pen, says judge, ABA Journal online, May 6, 2014; Corey Adwar, Lawyer Sanctioned For Inflicting A Potentially Dangerous Electric Shock On A Witness, Business Insider India, May 7, 2014), Howarth, in a lawsuit about whether cows could feel electrical currents from a power plant in their vicinity, gave a gag pen to a witness who was testifying that a person could not feel a 1.5 volt charge. Howarth reportedly informed the witness that the pen contained a 1.5 volt battery, directed the witness to click the pen, and asked whether the witness could feel it. 

Although a harmless shock was all the label on the pen indicated would occur, this particular pen contained a transformer that increased the charge up to 750 volts. The witness felt it. The court fined the lawyer $3,000 and concluded that battery of a witness occurred.

The question is, when something like this is reported and goes viral, how should a wrongdoer conduct himself as the world wonders, what was he thinking? How might that demonstration ever have turned out well? I certainly don’t know what Howarth was thinking, or what his client then or now was thinking, but I’d hope I’d have the wherewithal to apologize for a serious lapse in judgment. We’ve all had them; we should own up to them. 

It’s probably tempting to avoid the media’s calls and emails and tweets. This little episode will surely blow over. But when someone googles this five years from now, or in two more days, let’s hope there’s some contrition reflected in all of these write-ups. Who can’t forgive someone who made a mistake and acknowledges the error? A lapse in judgment need not end a career; a little humility can help save one.

—Lori Tripoli

Career Tip from a Tee Shirt

Seen on a tee-shirt in Key West: A good lawyer knows the law, but a great lawyer knows the judge! The tee shirt is right, and that’s a point that wasn’t sufficiently conveyed to me in law school or even by many lawyers afterward. I’m not suggesting anything untoward. It’s part of a litigator’s job to know the judge.

For a long time, I was far too intimidated by judges. Their robes conveyed a priest-like importance; the “In God we trust” signs in courtrooms seemed to imply some higher power—that perhaps only they could access?—was involved. Judges’ benches are elevated, compelling us to look up at them.

Judges are people. Some are smart, some are not. Some are levelheaded, some are quirky. Some are blustery, others are even-keeled. Some are good writers. Some are quick on their feet. Some let proceedings drag on. Some are too decisive and unwilling to backtrack. Lawyers need to play to judges’ strengths and to help them move past their weaknesses.

Know the judge. Know judges. Socialize a local bar meetings, get involved in the community, sit in courtrooms for a bit. When you’re on the job, tailor your pitch to maximize the likelihood that the judge will be persuaded.

—Lori Tripoli

What to Do When You’re Going to Be Late

Having just emerged from a very brief stint at jury duty (where, apparently, rather than settling the night before, the parties waited until prospective jurors had hauled themselves to the state courthouse before getting serious about settlement), I didn’t have a lot of empathy for the lawyer who showed up late for jury selection only to be jailed by the judge overseeing the case. Martha Neil, Judge jails lawyer and client over tardy arrival for jury selection, ABA Journal (May 7, 2013).

How exactly the lawyer missed the mark by 50 minutes is a bit unclear from the piece. Citing personal problems the evening before and a lax hotel receptionist apparently wasn’t sufficient reason to evade punishment.

One can only wonder about how thrilled the client was by his attorney’s behavior.

Some suggestions should this happen again in the future:

• First, really and truly, learn to use the alarm function on your cellphone. There’s no need ever for any of us to need a wakeup call from the front desk of a hotel given the technology we’re all packing. Other measures to take if you really worry about getting up on time: leave the lights on, the curtains open, the television on. Lights and noise are pretty good a summoning those who’ve lapsed into too deep a sleep. Worst-case scenario: Have someone from your office call, or have a significant other, or your mom, or whomever.
• Second, take that 16-second shower. When I’m running late, I can be showered with hair and makeup done and out the door in less than 10 minutes.
• If you really are going to be late for a court appearance, call the court and let the judge know.

—Lori Tripoli