Stupid Lawyer Tricks

What Were These Lawyers Thinking?! They Clearly Weren't...

The legal field used to be a much saner profession.

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As a dinosaur lawyer (and proud of it), I think that the world (and law practice) was a better, nicer, saner place before social media (or should it be called “unsocial media”?) became the way of the world. (In fact, there’s to be a symposium on Twitter law in early April in Boise.)

Most people now have absolutely no filter about what they choose to share. Many people, me included, are just not that interested in everything that a person has to say or what that person has done. Many times apologies share the blogosphere with nastygrams. What if people had just “ready, aimed, fired” instead of “ready, fired, aimed”? What were they thinking? They weren’t.

How would you like to be called a “snitch,” and have a rat emoji (I didn’t know there was one; I will have to check the emoji list on my phone) attached to a Facebook posting? That same poster, a Las Vegas criminal defense lawyer, is also charged with witness intimidation after she posted on FB saying that she had placed “hits” on her former boyfriend. Her lawyer said that the “hits” comments were mere hyperbole. I don’t think that “hyperbole” includes threats of witness intimidation. But here’s a good defense attorney zealously representing his criminal defense attorney client. (We always used to ask each other if an argument would pass the “straight face” test.)

Is it hyperbole or something more sinister: is it contempt? Arthur Brooks says that we are contemptuous of people who disagree with us.  We lawyers know all too well what “contempt of court” is, and hopefully we and/or our clients have never been the recipient of a contempt citation issued by a judge who is fed up with whatever shenanigans prompted it.

Brooks’s point is that it’s neither incivility nor intolerance that is roiling us today, both as lawyers and in our larger world as citizens, but that it’s contempt, not only for ideas dissimilar to ours, but contempt for the people themselves. He terms it the “outrage industrial complex,” which I think is a great way to describe the contempt that people have for each other’s ideas, which then morphs into demonizing others. Another commentator defines this era as the “industrial revolution of shame.”

Another example of contempt for a different point of view: a former district attorney in Texas is on “probated suspension” for a year because he allegedly threatened defense lawyers that he would shut down their practices if they made a claim of prosecutorial misconduct. I guess he didn’t learn the theory of zealous representation of clients as it applies to the defense bar (see example above) as well as to the government, and he must have slept through the First Amendment discussion in ConLaw.

Here’s a judge who clearly slept through the ConLaw discussion on the separation of church and state. How many times has God told you that a defendant in a sex trafficking case was innocent? The judge’s excuse was that at the time he was suffering at the time from “temporary delirium” caused by stress, his medical condition, and drugs he was taking. At least, this judge, instead of stonewalling, realized that he had done wrong and informed both prosecution and defense. Although he recused himself for sentencing purposes, another judge declared a mistrial after reviewing the court’s comments and rulings during the trial.

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Sometimes I think that lawyers are like cats; we don’t want our messes to be seen, so we cover them with litter. Eventually, the mess is scooped out, however, whether in the trial court, the appellate court, or the court of public opinion (i.e., social media).

And here’s the appellate matter in which the Fourth District Court of Appeal in Orange County (“O.C.” to the locals and it’s “Court of Appeal,” not “Appeals,” as so many are wont to say) severely benchslapped an attorney for claiming that the trial judge was a “succubus.” The attorney who appealed lost twice: his claim for attorneys’s fees and the court is reporting him to the State Bar. Which is worse?

The court minced no words: “As explained in section V of the Discussion post, as required by the California Code of Judicial Ethics, we are reporting plaintiff’s attorney Benjamin Pavone to the California State Bar for manifesting gender bias. The notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as ‘succubustic.’ A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”

Keep your dictionary handy. How is this for language in the plaintiff’s Notice of Appeal? And I am not making this up. “The ruling’s succubustic adoption of the defense position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners.” If I remember anything from my high school biology class, “reverse peristalsis” is something you’d have to clean up after.

Refer to this case if you ever need a refresher on why you need to conduct yourself appropriately. Whether it’s the “outrage industrial complex,” the “industrial revolution of shame,” or whatever you choose to call it,  please don’t say as we did in whiny voices when we were kids (remember?) that “everyone else does it.” You are not everyone else and everyone else does not do it.

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old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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