Would you have gone to jail for a client?

DO WHAT IS RIGHT, LET THE CONSEQUENCES FOLLOW

I believe we must do what is right, let the consequences follow. The challenge is that sometimes the consequences are negative. Twenty years ago I had an experience that had me saying, "I never felt more humiliated for doing the right thing." A friend of mine summarized it differently: "Young you big dog! You can't call yourself a trial lawyer until some asshole judge has put your butt in jail for contempt!"

I didn't know if my friend Rob Gill from Louisiana was trying to comfort me, teach me, or was lying to me. I had called to ask Rob, a criminal defense specialist I became friends with in 1996 when we both attended Gerry Spence's Trial Lawyer's College for advice on defending a contempt of court.

THE CHAMBERS CONFERENCE

The fat jowled judge with the ruddy imprint of alcoholism in his cheeks, made no secret of his disdain for my Palestinian client. My client was born in Columbia, spoke Spanish, and had never been to the Middle East, but that made no difference to the judge. He set out to scuttle the case, and drive the case to the result he wanted. I weathered every storm during the trial, and wondered what the judge had up his sleeve when he invited counsel into chambers. "Well how do you think the jury will rule?" Opposing counsel felt he would win. I disagreed, feeling my witnesses were convincing on the issue of interference with a commercial lease my client guaranteed. "Are you kidding?" the judge asked, "I didn't believe a damn thing those towel heads said."

I was aghast, but that didn't stop my mouth from running. "What did you call my clients? Are you kidding? I can't believe you said that."

The judge did not appreciate my outrage. "Don't tell me you are one of those bleeding-heart, let's all get along types."

"No, I'm one of those a judge shouldn't be a bigot types."

"Get out of my chambers," the judge said without disguising his resentment.

I happily left. I returned to the courtroom where my client was waiting for the verdict. "I think we're in trouble. Even if we win, the judge will scuttle us."

"Why do you think that?" my client asked.

"You won't believe what the judge just said."

"What?" my client asked. I recounted the chambers conversation to my client. He felt the same way I did.

THE VERDICT COMES IN

The next day the jury gave its verdict. The judge excused the jury and did something I'd never seen before nor since - he excused opposing counsel to sit in the hallway. When counsel left the courtroom, the judge said, "Mr. Young, the bailiff reports to me that you said things to your client about me yesterday that were very unflattering. I don't appreciate it and I am finding you in contempt."

"Well your honor, as long as we are sharing our feelings, I want you to know that last night I filed with the Supreme Court Chief Justice, a complaint about your racist comments yesterday." (Note: the judge had retired and was sitting by assignment from the Chief Justice.)

"Racist comments? What are you talking about?"

"Your comments yesterday in chambers when you referred to my client as a towel head."

"I never said that."

"You most certainly did and opposing counsel was there to hear it."

"Bailiff, get opposing counsel in here. I want to get to the bottom of this."

When my opponent had entered the court room, the judge said to me, "Okay Young, ask him."

I didn't think it was my place to do so, but never being to yield control if it's offered to me, I said, "Yesterday when we were in the judge's chambers, did the judge call my client a towel head?"

Counsel's eyes got big. I could tell he was weighing his options and how to escape unscathed. "No." A long pause followed. "That's not what he called him"

"There, see Young . . . "

"Just a minute your honor," I said. Then turning to counsel, "What did the judge call my client."

"Well I thought he was kidding."

I said, "There is no place in a courtroom for kidding about someone's race. Tell us what he said."

Then something happened I didn't expect, but it didn't surprise me. The judge leaned over the bench and said to the reporter, "Off the record." He then looked at me with a sneer and said, "Young, I order you to pay the clerk $1000 before you leave the courtroom."

"Your honor, I don't have my checkbook with me so I can't give the clerk a check. If I did have my checkbook with me I couldn’t give the clerk a check because I don't have $1000 in my checking account, and even if I did, I would go to jail before I paid the $1000."

The judge said, "Bailiff. Take him into custody. Mr. Young I hope I live long enough to testify at the state bar proceedings when you lose your license."

THE JUDGE THROWS ME IN JAIL

I was taken passed many of my friends, in handcuffs on the way to the basement holding cell. The deputies there took my shoelaces, my neck tie, my belt and everything in my pockets. They disassembled my wallet and inventoried it. The process took about an hour. I was then put in isolation because I was a civil prisoner and not a criminal prisoner.

I used my "free calls" and tried calling several friends including a court of appeal justice. None of them answered because it was the lunch hour on a Friday. I then called my office to talk to my partner. "Roland, I need you to file a writ of habeas corpus. I'm in jail and it's a wrong. Get me out." I was then taken to the cell, which had only solid walls and no bars or windows. I was in solitary and could not see or talk to anyone. Time passed very slowly. By my estimate, it was about 4:00 and the deputies were processing the criminal prisoners to return them to county jail for the weekend. I was worried that I would be forgotten, and would spend the night in my solitary cell, without light, for the whole weekend.

At about 4:30, a deputy came for me. "Your partner is at the clerk's office bailing you out. Let’s go through the inventory make sure you get everything back and we'll head to the courtroom." When I got to the courtroom, I was in for another surprise: The judge left early. The report I got was that he heard my partner was at the clerk's office and left because only he could order me released.

A friend of mine, a judge, came to the department, ordered me released and said he didn't care about the "release" rule. Here is where the saga began. I had to file post trial motions in the case. I didn't want the judge to hear them, so I filed a motion to disqualify the judge. A judge in another hears disqualification motions filed in our county. The Judge filed an opposition to that motion that stated, "I didn't call Mr. Young's client a 'towel head. I called him a camel jockey. I have a Lebanese nephew and we use that term to joke with him. I don't use it in a prejudice way. It’s for humor."

I GO TO THE COURT OF APPEAL

I filed my challenge to the contempt in the Court of Appeal and included the Judge's declaration as part of the record. When the oral argument in court of appeal, I stood to argue and began, "This appeal presents the issue of whether an attorney client conversation in a court, overheard by a bailiff, concerning a prejudiced remark by the judge can serve as a basis for a contempt."

The Chief Justice David Sills interrupted my argument. "Mr. Young. Do you think there grounds for the County to oppose your application here?"

I answered, "No your honor."

"Can we dispense with oral argument then?"

"I understand what you are saying your honor, and I would if I knew the other justices felt as you do about this matter."

His honor replied, "Oh you can assume we all feel the same."

"Your honor, I submit." It was my shortest argument ever in the Court of Appeal. Several weeks later, the opinion came out. It excoriated the judge for his comments and for the manner in which he conducted himself as it related to me and alleged contempt.

THE LESSON IN ALL THIS:

Opposing counsel did not have the courage to answer forthrightly about the judge’s misconduct. He owed it to the system and to my client to have been honest. As a result, I suffered, and the system suffered.

We must have courage to stand against things that are wrong, regardless of our concerns about personal inconvenience or detriment. I stood up to the judge. Opposing Counsel should have stood with me because the judge was just wrong.

A POST SCRIPT

There is a footnote to the story. After the contempt citation was entered against me, an organization concerned about discrimination approached me and asked what they could do about what had happened. I suggested that I could ghostwrite a letter to the Chief Justice of the Cal Supreme Court expressing the chagrin the organization felt that a judge would use such a reference during a case. I expressed in the letter how a court must be the one place of all places where any member of a minority or group could feel safe that fairness and justice would prevail. The president of the organization signed the letter and we sent it off. Several years later I learned that the letter that the  California Judicial Counsel was using the letter to train new judges in ethnic sensitivity in an effort to prevent a recurrence of what I experienced. I like to think my time in jail for contempt redounded to benefit of all when in court

An Out-of-the-Box Approach to Controlling the Argumentative Witness

Imagine you are finally in trial after a hard-fought discovery and pretrial process. Your opponent has battled on every point, many times simply to oppose what you want. Your frustration grows as the court rules in your opponent’s favor on motions in limine (pretrial evidence exclusion motions) thus removing from your arsenal some of your best evidence. At each phase of the trial your opponent objects to everything. His strategy continues into your witness examination.

The judge says, "You may call your next witness."

You rise looking at the jury to gage their reaction and announce, "Plaintiff’s next witness is the Defendant, Josiah Wrongful."

Wrongful’s attorney rises, "Your honor we object to Plaintiff calling Mr. Wrongful in their case in chief."

The judge overrules the objection, "Counsel, Plaintiff can call and cross examine the Defendant during their case. Let’s get going."

It is now payback time for all the frustration you have felt throughout the case. You are prepared. Your deposition summaries are at hand and indexed. Each discovery response is marked and you have lodged the original request and response with the judge. Each exhibit you intend to use is arrayed, marked, and cross referenced to other relevant exhibits. You feel power and control racing through you veins as you rise to examine.

But the witness does not play straight. You ask limited questions, leading on cross. But the defendant does not answer either "yes" or "no." He pontificates. You try to cut him off before he can run away with another answer, but your opponent successfully urges the judge to allow the witness to answer the question. You start moving to strike the non-responsive portions of each answer, but watching the jury, you sense they do not understand why you are playing "attorney games" and trying to hide the truth from them.

You fall back to law school. You remember your professor taught, "Ask the judge to instruct the witness to answer the question." Unfortunately, the judge is not willing to do that and responds, "I think the answer is responsive."

What can you do? If the Defendant won’t answer your question straight, most of your prepared cross will not make sense, much less help you.

 AN OUT-OF-THE-BOX APPROACH

This suggestion is not for everyone, and definitely not for you if you are facing your first jury trial. It is something that I hit on one day when I was so in the moment at trial that it just came out and worked perfectly.

Assume the same scenario as I described above, but rather than struggling with the witness, simply recognize that the witness has a story he wants to tell and your questions are not going to get in the way, unless you use jiu jitsu and bring him under control.

I was in a trial, with a defendant on the stand, who wanted to argue every question with a narrative answer. I said, "Mr. Wrongful, there is obviously something you feel like I am not letting you say that you feel is important because you are not answering my questions. I am going to allow you to say whatever you feel you need to say to the jury. I am going to sit here, just let me know when you are finished so I can resume my examination."

I then sat down. Opposing counsel did not object, because I have just given the defendant free reign to speak. The judge perked up, looked over his reading glasses at the witness, not knowing what was going to happen, never having seen anything like this. A hush fell on the whole courtroom.

The defendant turned uncomfortably toward the jury and began to speak. You could hear a pin drop. Everyone wanted to hear how this would go. The Defendant spoke for a minute of two, said really nothing, and finally, almost apologetically said, "Mr. Young, please ask me your next question."

I wasn’t willing to let him off quite so easily yet. I asked, "Are you sure you don’t have anything else you need to say to the jury?" He assured me there was not.

I stood up and resumed my examination. If the witness wandered at all in his answer, I asked, "I’m feeling a little tension again between us, is there something else I need to let you tell the jury?"

Each time the Defendant responded, "No, no, ask me the question again." To which he provided a direct answer.


WHY DID THIS WORK?

I was being fair to my opponent. The jury recognized that. When I stated what I believed the jurors were feeling, that the Defendant was being evasive and offered to allow him to talk directly to the jury without me asking questions, he turned to face a jury that was then really irritated with him. I watched the jurors’ faces. They were not friendly and open to the Defendant. Have you ever tried to talk to a group of people who feel hostile to you? That is what the Defendant was doing. The reason he didn’t speak very long is because the jury imposed their own control on him. He knew they did like that he was not playing by the rules. They did not like that he was not answering my questions.

The jury felt like he was wasting their time.

I have had people ask me, "Aren’t you worried about what the Defendant will say? Won’t the Defendant’s uncontrolled speech kill your case?"

My answer is "No." I don’t care what he says in that situation, because the jury is not going to listen to him anyway. Everything he will say, even if Defense counsel reads this at some later time and prepares a speech for their client, it won’t matter to me. The jury will not listen to the speech, and if it is a good speech, they will know the defense attorney prepared it, and really punish the Defendant. That’s because the Defendant is not following the rules, and all I have done is highlight that for the jury.

The proof of that is what happened each time the Defendant started to relapse, and I offered another "free go" at the jury, the witness said "No." That was because he did not want to face the punishing jury again. Once was enough, he did not want to go there a second time. Instead the response to my offer became, "No, just ask your question again.

I’ll answer it."

I don’t use this tactic often, maybe less than once every 10 trials. Opposing counsel who have heard of this tactic have tried to prepare their client with an organized speech. It hasn’t worked. That’s because it is not about the speech, it’s about how the jury reacts.


A FURTHER NOTE:

On occasions where I have used this tactic in trial, I don’t leave it at witness control. In closing argument, I always comment on what happened during that cross examination. It will sound something like, "Who is it that is unafraid of the truth in this case? The Defense insisted that every witness answer their questions with only a ‘yes’ or ‘no’. When I was examining, I gave everyone the chance to explain anything they wanted. I was not afraid of any answer because the truth makes you free. In fact, remember when I was cross examining the Defendant, and he wanted to give speeches rather than answer my questions? I didn’t fight him and insist, ‘just answer yes or no.’ Instead, I sat down and said, ‘tell the jury whatever you want.’ What does that tell you about truth in this case? I didn’t care what he said. All I cared about was you getting to see him and how he acted, even when he was given free reign to say whatever he wanted. That’s because we know that you know what the truth is and who is unafraid here."

When you feel comfortable in trial, try this sometime. It will take great courage, but that is what trial is about: doing the right thing, at the right time, for the right reason.

Check back each Friday for my posting of new installments of Young On Trial.

I have published two small books to help the ordinary person with employment issues. They are for sale at Amazon.com for only 99 cents each. One is called  “You’re Fired!” and the other is called  “I Quit My Job!”  Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.

Until next Friday, thank you for reading.

3 Problems with Opposing Medical Experts you can Solve with the AMA's Ethical Rules.

The Code of Medical Ethics of the American Medical Association presents fertile ground for counsel to cross examine opposing medical experts. In my experience, most doctors are unaware of these rules and in all cases violate the proscription against disclosing without permission, the plaintiff’s medical information derived from a medical / legal examination. 



Problem 1: The Physician Who Demands Payment to Testify.
Invariably when I serve a trial subpoena on a treating physician concerning a client, the doctor immediately demands that I pay an exorbitant fee and threatens to either ignore the subpoena if I don’t pay, or worse threatens to scuttle my case if the judge compels him to testify. Somehow doctors have elevated themselves to paid witnesses no matter their role at trial.

I respond, citing Rule 9.07 "Medical Testimony" of the AMA Ethics Rules, which provides:

"As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician's assistance, the physician should furnish medical evidence, with the patient's consent, in order to secure the patient's legal rights."

The ethical rules are silent as to any compensation to the doctor, and instead impose an affirmative duty on the doctor to appear and testify.


Problem 2: The Other Side’s Expert Hasn’t Treated a Patient in Years.
What do you do when you encounter the professional witness physician? You know the type; he does not treat patients but makes his living selling insurance medical examinations (IMEs) and delivering damning medical testimony. Rule 9.07 "Medical Testimony" addresses this and gives a rich source for cross examination.

"Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise."

A cross examination of a professional medical witness might sound like:

"Please tell the jury how long it has been since you treated a patient."

"Five years ago when you lasted treated a patient, what area of medicine was it in which you were treating that patient?"

"How long ago was it that you last practiced medicine in the area in which you are offering your opinion today?"

"Have you retired from the practice of medicine?"

"I mean, are you still using your medical school training and the experience you obtained caring for the sick and injured to generate income for yourself at the present time?"

"Is that income only from examinations related to court cases, like this one?"

"When you come to court to testify, you are paid as an expert witness , correct?"

"During the past five years, you sole source of income from your medical training has come from serving as a testifying expert for attorneys at trial, correct?"

"Are you a member of the AMA?"

"Please tell the jury what that is."

"Please look at Exhibit 47. For the record your honor, 47 is the American Medical Association’s Code of Ethics. Do you recognize that Doctor?"

"Tell the jury why you haven’t seen this in 30 years."

"Regardless of that, please look at Rule 9.07 "Medical Testimony" of the American Medical Association. It says, ‘Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise.’ Please tell the jury what ‘substantive experience’ means."

"Please tell the jury what ‘recent’ means in that rule."

"Please tell the jury why whether you have resigned your membership in the AMA."

"Did you resign your membership in the AMA because you did not want to be a member of an association that says that if you have not treated patients for five years that it is unethical for you to testify in that field?"

"No further questions."


Problem 3: The Opposing Medical Expert Assumes the Role of Advocate.
Who hasn’t confronted the physician at trial who assumes the role of advocate and argues not only the opponent’s case, but sets out to destroy your case, even if the testimony is not medically sound?

Rule 9.07 of the AMA Rules of Ethics tells doctors that they cannot be advocates:

"The medical witness must not become an advocate or a partisan in the legal proceeding. The medical witness should be adequately prepared and should testify honestly and truthfully. The attorney for the party who calls the physician as a witness should be informed of all favorable and unfavorable information developed by the physician's evaluation of the case."

"Doctor, are you here as an advocate for the defense?"

"What does it mean for a doctor to be an advocate in a case?"

"You know you cannot be an advocate, or else you violate the ethical rules of the AMA, correct?"

"You know that part of your obligation to remain neutral and not be an advocate requires you to tell my opponent not only the medical information favorable to his defense, but also the unfavorable information developed during your examination, correct?"

"Please list all the information unfavorable to the defense that you developed during your evaluation of the Plaintiff."

"Why didn’t you note that information?"

"Is safe to assume you did not share that with my opponent?"

"Is it also safe to assume that you did not intend to share that with the jury, unless perchance on cross examination, I asked you specifically about it?"

Note:  After getting the doctor to state for the jury that he is not an advocate, if the medical expert begins to slip back into the argumentative role, I bring them back by asking:  "Doctor, are you advocating again?"  When I do this, the doctor embarrassedly apologizes and affirms, "No, no please ask your question again, I try to answer it."


Check back each Friday for my posting of new installments of Young On Trial.

I have published two small books to help the ordinary person with employment issues. They are for sale at Amazon.com for only 99 cents each. One is called "You’re Fired! " and the other is called "I Quit!" Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.  If you have any questions, you can email me, I'll answer.

Until next Friday, thank you for reading.