Of courtroom capers, sanctions and squeezed babies
A lawyer friend, Brian, occasionally mentions the idea of "innocently" placing a colorful bag on his table during an opposing lawyer's final argument. The thought is that jurors would spend more time staring at a shiny satchel than paying attention to an adversary's summation.
Me? I'm no angel, but perhaps performing that trick correctly is not the same thing as saying that it's the correct trick to perform.
Of course, many believe a lawyer who cannot function like a pit bull should at least be sneaky — as in, "Take every advantage you can" or "We've got to do unto others before they do unto us."
So, even in good, gray Grand Rapids, it's not as if one has to be a “Philadelphia lawyer,” whatever that is, to want to seek advantage over an unsuspecting adversary.
Still, proper courtroom decorum really does matter, and there are judges — even in Philly — who don't tolerate distractions.
Take Paul Panepinto, a Philadelphia-based Common Pleas Court judge who recently slapped a $946,197 sanction on defense lawyer Nancy Raynor for failing to prevent a witness from offering testimony that His Honor said was not to be given.
The case involved claims by the estate of Rosalind Wilson, who died of lung cancer after a hospital allegedly failed to tell her of a suspicious nodule located through an X-ray. Following pretrial debate over whether to let the jury know Wilson had been a smoker, Judge Panepinto instructed all lawyers to offer no evidence of her smoking history.
Perhaps the Court thought that the focus was to be on an alleged failure to divulge results of a medical test. Maybe the Court thought mention of smoking would distract the jury from the simpler question of whether failure to communicate test results had led to Wilson's death.
Right or wrong, His Honor's instructions specified what the jury was not to hear and conveyed his Order as to a distraction that was not to occur at trial. And an Order is an Order.
Unfortunately, the trial included testimony from a defense expert who told jurors Rosalind Wilson had been a smoker. The expert's conduct — two weeks into the proceeding — resulted in a need for a new trial.
Trying a case twice is expensive, and the Plaintiff moved for sanctions related to the cost of the "do over." The Court subsequently concluded defense counsel's conduct related to presenting the banned testimony "was orchestrated to improperly influence the outcome of this trial."
Panepinto then sanctioned Attorney Raynor for nearly a million dollars.
Sanction-related arguments included claims that all lawyers were fully aware of the prohibition of testimony related to smoking, but defense counsel argued she had, in fact, taken appropriate steps to advise her witnesses of the Court's instructions. However, the witness who gave the smoking-related testimony was not clear as to whether he had been made aware of the Court's instructions. The Court's findings also included its belief that Attorney Raynor had often changed positions while arguing against sanctions.
According to Philadelphia Inquirer reports, Judge Panepinto's million-dollar sanction is unheard of in Philadelphia. It's not the kind of thing that happens in Grand Rapids either.
Attorney Raynor — who often represents hospitals in malpractice matters — has challenged her sanction in appellate tribunals. She also faces post-sanction difficulties, such as sanction-related liens on her property and attempts to empty her bank accounts.
A higher court recently ordered Judge Panepinto to conduct an additional hearing on his sanction. Still, the sanction demonstrates the power of judges to prevent distractions from occurring in courtrooms. As Michigan's Supreme Court has noted, courts must regularly attend to "concerns over belligerent, antagonistic, or incompetent lawyering," with an eye toward ensuring "the orderly operation of justice."
Perhaps more important to non-lawyers, including those who must hire attorneys: Judges have the power not only to sanction lawyers but also to sanction any party who is found to be complicit in an attorney's offensive conduct.
In the meantime, while they may not always run smoothly, trials continue. It's also worth noting that million-dollar sanctions are newsworthy because they are rare, which may explain why lawyers continue to take chances.
When I told my buddy Brian about the first two paragraphs of this column, his response was that a prominent lawyer once used the colorful bag trick on him and won, after which Brian used it on another lawyer and also won.
I still think my brother counsel was kidding me, and who really knows why the juries did what they did? Still, our exchange reminded me of a long-ago trial during which I defended a recording studio against a claim that it owed a plaintiff a refund for unused session time.
The plaintiff was a young woman with an angelic face who said she had come to court without a lawyer because she couldn't afford one. She testified — while holding what appeared to be a shiny new baby on her lap — that she no longer lived in town but had come to court from California because she really needed to get her money back. Perhaps she held her baby while testifying because she couldn't afford a babysitter. Note my use of the word "perhaps."
An odd thing happened when I rose to cross-examine the young mom. I was loaded for bear, but when I got to my best questions, the baby started crying and evidently decided it wasn't going to stop. Lord knows whether my detailed preparation made any impression during the youngster's yelling, but I am certain my significant height and weight advantage over the mother and crying child left me looking like a bad guy throughout our exchange.
When trial was over, mom had won and I had lost. Perhaps I had been beaten by the old "squeezed baby trick."
For all I know, the baby may now be in law school. What I can't remember is whether it was wearing brightly colored clothing during my cross-exam.
Bill Rohn is a trial partner and former Trial Practice Group chairman in the law firm of Varnum LLP. He focuses his litigation practice on commercial, construction, employment and product liability matters. He can be reached at firstname.lastname@example.org.