Legally Speaking: That could have gone better
This is a reprint of a "Legally Speaking" column that first appeared in the Southeast Texas Record on Nov. 14, 2011. Years ago, I tried a case in which the elderly plaintiff, egged on by her adult daughter, turned down what I thought was a pretty generous six-figure settlement offer and insisted on proceeding to trial. When the jury came back in my client’s favor with a verdict that the plaintiff receive nothing, she looked absolutely stunned. The adult daughter—never at a loss for words—simply started berating the despondent-looking attorney, screeching “Well, that could’ve gone better!” It is an image that remains with me whenever I hear of moments at trial that go horribly awry for one side or the other. Here are a few of my recent favorites: A Defense That’s All Wet Fifty-five-year-old Marie Rusin was in federal court in New York recently, accused of scamming the Long Island Rail Road pension fund. In an earlier proceeding, she was accused of “fabricating a medical condition” in order to avoid a trip to Manhattan to meet with federal prosecutors. This time, Rusin “slumped over and did other things to make it appear she needed medical attention” in court, according to Assistant U.S. Attorney Justin Weddle. To really sell the supposed performance, prosecutors say, Rusin purposely peed in her pants—the evidence of which was still staining the courtroom chair as she was taken to a nearby hospital. While Rusin’s attorney denies that his client was faking a medical problem to get out of court, the incontinent defendant was released after about an hour and the hearing resumed. She Rubbed This Lawyer the Wrong Way It’s got to be somewhat awkward when you are a lawyer defending someone accused of illegal human trafficking, as Chicago lawyer Douglas Rathe was in August. Rathe was defending Alex “Daddy” Campbell in federal court. Campbell was accused of exploiting immigrant women by having them work at his massage parlor and perform sexual favors for money (called “extras”) pocketed by Campbell; he allegedly kept the women under constant threat of deportation. At trial, witness after witness testified about Campbell’s reign of terror. But the trial came to an abrupt halt when Ukrainian immigrant Liudmyla “Liuda” Ksenych told prosecutors that she recognized defense attorney Rathe as a client from the massage parlor where she worked for Campbell. U.S. District Court Judge Robert Gettleman declared a mistrial. In the meantime, in a hearing that had to give new meaning to the words “awkward” and “uncomfortable,” Rathe testified about how he was indeed a massage client of “Liuda,” and had given her gifts and exchanged emails with her—but that there was no sex involved. Campbell is set for a new trial in January, and with a new defense attorney—one who hasn’t frequented his massage parlors. Some People Beat the Rap, Others Beat the Judge Philadelphia defense attorney Joseph Stanton was defending right to life advocate Margaret McGrath in July 1997. The 60-year-old McGrath faced harassment and assault charges stemming from picketing a northeast Philadelphia abortion clinic. During an in-chambers hearing in the midst of trial, assistant district attorney Brian Grady “got carried away” and tried to assault Judge Richard Klein. When defense attorney Stanton intervened, he got pummeled for his trouble. Grady was held in contempt of court and fined $2,500. A mistrial was declared and another judge granted a motion to bar the retrial of Ms. McGrath, calling Grady’s acts “a signal of the breakdown of the integrity of the judicial proceeding.” That’s too bad—I wanted to negotiate the pay-per-view rights for the rematch. Helpful Tip—Don’t Call the Judge an “Ass Clown” Paul Hupp filed for bankruptcy and tried to discharge $80,000 worth of student loan debt, and the legal maneuverings in his case brought the dispute all the way to the U.S. Court of Appeals for the Ninth Circuit in California. But perhaps he should have invested in a lawyer instead of representing himself, because his persuasion skills could use a little work. For example, his brief is one long, rambling missive full of profanity, most of which is directed against the judges themselves. I can’t quote most of Hupp’s choice wording in a family newspaper—suffice it to say that “slime ball” and “ass clown” are about the most printable ways he addresses the court. And while there are many ways to respond to an argument by opposing counsel, I’m pretty sure that “Wrong, bitches” is not the preferred way taught in most law schools. Hupp’s appeal was denied—color me surprised. Taking the Hypocritical Oath Sixty-year-old violinist Martin Stoner wants to be judged for his abilities, not his age. After being rejected from a competition run by the nonprofit Young Concert Artists, Stoner (who played with the New York City Ballet orchestra for 25 years) filed an age discrimination lawsuit in federal court on his own behalf. But after his case was assigned to 88-year-old Manhattan federal Judge Robert Patterson, Stoner cried foul and filed a judicial complaint seeking a different judge because, he claims, Patterson is too old. In his complaint, Stoner argues that Judge Patterson “could barely see unless he put his face almost on top of a document,” that he “should be removed from the bench both because of his mental and physical limitations,” and because he’s “too old to preside.” The irony isn’t lost on anyone, including Stoner. “I know it sounds kind of like hypocrisy,” he said. Young Concert Artists director Susan Wadsworth said “The whole thing is pretty comical.” Good luck appearing credible as a crusader against age discrimination, Mr. Stoner—you’re going to need it. Maybe the Pen Is Mightier Than the Sword Joshua Monson, a defendant up on felony drug charges in Snohomish County, Wash., is finding it hard to come by both defense lawyers and office supplies lately. That is because he keeps stabbing his attorneys with pencils and pens—to the point where Judge David Kutz has declared that Monson has forfeited his right to counsel. In the first two incidents, Monson was accused of stabbing two different lawyers with pencils smuggled in from jail. In the third incident on Nov. 1, Monson allegedly grabbed a pen from defense attorney Jesse Cantor and stabbed him in the head during the prosecutor’s opening statement. For the rest of his trial, Monson will not only have to represent himself, but he’ll do so strapped to a special chair—a lá Hannibal Lecter. Judge Kutz instructed the jury to ignore the pen-stabbing incident, the absence of counsel and Monson’s unique restraints. And for goodness sake, don’t let him anywhere near an office supply store! When All Else Fails, Blame Your Legal Education Finally, there are those lawyers who personify the old saying about how it is better to remain silent and risk people thinking you’re ignorant than to open your mouth and confirm their suspicions. This exchange comes from an actual trial transcript quoted in a case that went up before the U.S. Court of Appeals for the Fifth Circuit. The judge and the plaintiff’s attorney, Mr. Phipps, are discussing the applicability of certain cases to the one Phipps is arguing: Judge: What do you do about Morgan? Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor. Judge: You don’t know Morgan? Phipps: Nope. Judge: You haven’t read it? Phipps: I try not to read that many cases, Your Honor. Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that? Phipps: They didn’t teach me much, Your Honor. Judge: At Tulane, is it? Phipps: Loyola. Judge: Okay. Well, I must say, that may be an all time first. Phipps: That’s why I wore a suit today, Your Honor. Judge: Alright. We’ve got your attitude, anyway. Yeah, that could have gone better.