Matters Column

Witnesses are entitled to respectful treatment during litigation

May 23, 2014
| By Bill Rohn |
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No one likes to see an obnoxious lawyer on the other side of a courtroom. But a recent Utah State Court decision in a case known as Gunn Hill Dairy v Los Angeles Department of Water & Power provides hope to those wishing litigation could proceed in a civil manner. 

The case involved dozens of farmers, hundreds of cows and millions in claimed damages, plus disagreements over the effect of alleged electroshocks to Utah dairy cattle. The plaintiff claimed cattle had received undesired "stray current" shocks as the result of the misconduct of a nearby power plant. One matter at issue was whether the alleged 1.5 volt electroshocks could harm cows that were otherwise minding their own business. 

One might have known the litigants were heading for trouble early on. That's when one lawyer put a AAA battery in his mouth, presumably to show the jury he had no fear of a potential shock.

After that, things went downhill.

In response to testimony from an expert witness about the lack of severity of a 1.5 volt shock, a cross-examining lawyer approached the expert with a pen, stated that he had put a AAA battery in the pen in such a way as to cause an electrical circuit to be completed when the expert activated the pen, and then asked, "Would you like to see whether you can feel the AAA battery, sir?" 

Proving that expert witnesses will do what cows won't, the expert responded by pressing on the pen. What happened next is that the expert hastily dropped the pen to the floor after being zapped with a jolt of electricity.

Because the plaintiff's cross-examining lawyer — a California-based barrister — had been admitted to practice in Utah specifically for the Gunn Hill Dairy case, the defendant's attorneys responded to the "electric pen trick" by filing a motion to revoke his right to continue to practice in Utah. 

Instead of granting the motion, Utah District Judge James Brady issued an Opinion and Order requiring the cross-examiner to pay sanctions: $1,000 to the expert witness and $2,000 to the law firm who had presented the expert to testify. 

Judge Brady's opinion, filed May 5, noted the electronic device was a novelty item designed to give unsuspecting individuals an electric shock and that product warnings indicated it was not to be used on children, adults over 60, or anyone in poor health. 

The court said the pen contained not only a 1.5 volt AAA battery, but also a transformer that could raise the current "up to 750 volts," an amount believed to be, "enough to cause death in people with health conditions." The court also found that the demonstration was not truly relevant to matters before the jury and the offending lawyer's actions had "undermined the integrity of the adjudicative process."

The trial judge offered additional observations that perhaps should be obvious. He wrote that witnesses are often not familiar with trial procedure or the expectations of attorneys, are entitled to be safe from assaults or physical intimidation, and are primarily expected to answer questions testing their qualifications, memory and truthfulness, while also remembering prior testimony and explaining any inconsistencies. 

"To add a requirement that they do this in a physically hostile environment where they may be subject to electrical shocks without warning," wrote Judge Brady, "is far removed from the decorum and professionalism required by attorneys and has no place in the courtroom."

The case ended in a mistrial — oddly enough, for reasons unrelated to the jolted expert witness. However, the court's sanctions also prevent the offending lawyer from cross-examining expert witnesses at the future retrial. 

Stories like this amuse lawyers, perhaps because they sometimes wish they could use more than words as weapons. They are also of interest to non-lawyers, particularly when lawyers get fined for offensive conduct. 

And as for those who hope to be treated with respect when they must visit the halls of justice? It is worth knowing that there are rules to protect parties and witnesses from overly aggressive conduct. Michigan lawyers are subject to Court Rules and Rules of Professional Conduct requiring attorneys o exhibit decorum that engenders respect for what occurs in courthouses. 

In other words, lawyers are trained to advocate zealously on behalf of clients, but seldom if ever do judges allow that activity to include bullying, browbeating, excessive argument, or — perhaps worst of all — attempts to intimidate witnesses. The concern is that offensive conduct can lead to inaccurate testimony or an improper emphasis on the grandstanding of lawyers rather than the facts of a dispute. 

Perhaps a more dangerous type of conduct is that which occurs at pre-trial witness depositions, which provide lawyers the opportunity to question litigants outside the presence of judges. Because no judge is present, the risk of improper conduct toward witnesses is heightened, and contentious depositions are something like boxing matches without referees. 

Fortunately — and consistent with both Michigan's rules and the opinion in the Gunn Hill Dairy case — witnesses and other non-lawyer participants are entitled to respectful treatment throughout litigation. Those who enter the process are entitled to know this and to insist on protection by their legal counsel. 

Non-lawyers might also insist their own legal counsel follow appropriate rules of decorum. The result is litigation that runs more smoothly, more efficiently, and in a way that makes a seat in the courthouse or a deposition room a less unpleasant — if still not entirely pleasant — place to be.

Bill Rohn is a partner, trial lawyer and past Litigation Practice Group chairman in the law firm of Varnum LLP. He can be reached at werohn@varnumlaw.com.

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