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Article of Interest

Take the High Road – It Will Serve You Well
By:  Fred Raschke, Mills Shirley LLP

Describing lawyers as modern day warriors is a tired metaphor routinely invoked by judges, news media and the bar journals. For example, routine profiles in Texas Super Lawyers herald lawyers as fighting for their clients. ^[1] Continuing legal education frequently features lawyer “war stories." But as we all know, lawyers are not actual warriors. Lawyers do not carry swords, sleep in barracks, nor do they salute fellow lawyers at the Courthouse. Nevertheless, despite the lawyers’ desire to be warriors, many lawyers are less than chivalrous.

“In all professional functions, a lawyer should zealously pursue clients' interests within the bounds of the law….” ^[2] What is the difference between zealous advocacy and unethical conduct?

Just as the 1949 Geneva Conventions attempted to set forth the modern rules of war, the Texas Rules of Civil Procedure set forth the rules for dispute resolution in our civil justice system. Similarly, the Texas Disciplinary Rules of Professional Conduct set forth the rules for the ethical practice of law, whether in battle or not.

The Preamble to the Texas Disciplinary Rules of Professional Conduct states:

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by the lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct. ^[3]

An officer of the court is a generic term that appears in our statutes ^[4] and references primarily three different categories of individuals. First, court officers include personnel who determine the course of justice. This includes, judges, magistrates, arbitrators, the jury and prosecutors. Second, court officers also include persons who, through their investigation and expertise, provide relevant information. Examples include coroners, medical examiners, marshals, sheriffs, constables and professional licensed experts, such as certified public accountants and engineers. Lastly, there are officers of the court who provide service to the parties. This includes attorneys^[5], bail bondsmen, interpreters, court appointed special advocates and process servers.

One less than admirable tactic at trial is for an attorney to argue that “as an officer of this court” he thinks the evidence supports his client’s position. Isn’t just about everyone in the room an “officer of the court?” Why would a lawyer try to comment on the evidence by washing his opinions with the color of the court’s authority. When faced with such an argument, should you point out to the jury that everyone in the courtroom is an “officer of the court?” In other words, it does not matter to the jury what the bailiff’s opinion of the facts are just because he, too, is an officer of the court.

Higher Stakes

There have been a lot of articles written on the Vanishing Trial. ^[6] The reasons are well known: (1) some judges disfavor trials, (2) cost, (3) the rise of summary judgments, and (4) alternative dispute resolution.  Possibly as a result, when a case does go to trial, it may be because of higher stakes. This added pressure can drive zealous lawyers to less than admirable conduct.

Consider the following lawyer’s battle tactics employed during a recent voir dire:

1. Calling a prospective juror a “limousine liberal” (it takes one to know one).
2. Saying that my client is “owned by a bunch of New York bankers.”
3. When questioning a prospective juror, a lady, whose son was in a puppet show in Cincinnati — "A wonderful puppet show – I know it well" — when you know good and well that he had never been near a puppet show.
4. The lawyer professing that he knew everybody – but really he knew no one at all.
5. Causing a staff member to request to be a Facebook friend of a member of the panel.

Are you prepared to respond to such trial tactics? How would you respond? My advice is to take the high road by not engaging in similar conduct. The jury will appreciate your class and it will ultimately serve you well.

Responding to Disruptive Objections

How can you respond when opposing counsel engages in a pattern of constantly disruptive objectives? Is this unethical conduct, and when does it rise to the level of contempt? Texas Disciplinary Rules of Professional Conduct 3.04 sets for rules regarding fairness in adjudicatory proceedings.

A lawyer shall not: … in representing a client before a tribunal: ⁽¹⁾ habitually violate an established rule of procedure or of evidence; ⁽²⁾ state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness; ⁽³⁾ state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, except that a lawyer may argue on his analysis of the evidence and other permissible considerations for any position or conclusion with respect to the matters stated herein; ⁽⁴⁾ ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that the question will lead to relevant and admissible evidence; or ⁽⁵⁾ engage in conduct intended to disrupt the proceedings. ^[7]

Similarly, the Texas contempt statute, Government Code Section 21.002, encompasses both criminal and civil contempt, but it neither defines criminal contempt nor delineates what conduct constitutes contempt. Texas courts, however, have long had inherent power to fine and punish for contempt. This power is “broad and plenary.” ^[8] “Although the exercise of this authority should be tempered with common sense and sound discretion, nevertheless we accord the judge's contempt power wide latitude because it is essential to judicial independence and authority.” ^[9] Typically, the Texas Courts have addressed criminal contempt proceedings on the basis of whether the conduct obstructed the administration of justice or hindered the forward progress of a trial. ^[10]

Admittedly, this contempt standard is vague, but in practice, contempt is typically only used after repeated warnings from the court. ^[11]

As such, repeatedly disruptive objections are unlikely to be found as contempt, and it is difficult to enforce ethical guidelines in the heat of battle, so how does a lawyer respond to disruptive objections?

Consider the following objections made during a recent trial:

“This deeply troubles me, your honor.”

“Pardon me, I have a problem your honor . . . .”

“That falls under the goosey gander rule.”

“This is mouse-trapping, your honor.”

“A duck is a duck is a duck.”

“Can't call a duck a chicken.”

“That is sort of a gotcha.”

“I'm from the old school. Once the judge rules, that's it.” Yet, every morning we were faced with a new brief and a new motion complaining about the court's ruling against the plaintiffs the previous day.

Plaintiffs' counsel yelling at defense counsel: “This is the way I express myself. It's better than keeping it in my mind and having bad thoughts.”

“Conjecture on conjecture.”

“That is imagination your honor.”

“I want to indicate a concern.”

“This is something very troubling to me.”

“I am sitting back listening to their expert and I am confused.”

“Inference upon inference upon inference.”

“Purposely intending to confuse the jury . . . .:”

“There's a finger-pointing virus.”

“This is Chicago-style cross-examination.”(This particular defense attorney was from Chicago)

"Confusing the jury."

How would you respond to objections such as these? When faced with an objection, indicating that a question is a “finger pointing virus” how is the Court supposed to rule? Of course, there is no way to rule on such objection because the purpose is not to get a ruling from the bench but rather to disrupt testimony and inhibit a lawyer’s ability to put on his/her case.

Responding to objections can be difficult and try the patience of any lawyer. Do not respond with similarly silly objections, which could further degrade the trial and inhibit the introduction of evidence. The best practice, despite the difficulty, is to be respectful of the other side, and calmly respond to the substantive arguments, should there be any. The jury will appreciate your professionalism.

At the end of the day, if you take the high road, it will serve you well.

Fred Raschke is the managing partner of Mills Shirley LLP. Over his 30 years as a trial attorney, Fred has tried to verdict many high profile cases in multiple states. Fred is a member of the Executive Council of the Association of Defense Trial Attorneys and a past president of the Texas Association of Defense Counsel.

^[1] Johnson, Andrew, The Man Who Made Driving Safer, Texas Super Lawyers, Texas Rising Stars 2010 – April 2010,  (“’It’s certainly intimidating at times, but I enjoy the fight,’ Embry says. ‘It’s high risk, and can be high reward, both emotionally and financially.’”)

^[2] Tex. Disciplinary R. Prof'l Conduct preamble ¶¶ 3.

^[3] Tex. Disciplinary R. Prof'l Conduct preamble ¶¶ 1 (emphasis added.)

^[4] See E.g. Tex. Gov't Code Ann. § 21.002 (2010) (“(d) An officer of a court who is held in contempt by a trial court shall,…”

^[5] The Supreme Court of the United States held in Ex parte Garland, 71 U. S. 333 (1866) that "Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character." However, Cammer v. United States, 350 U.S. 399 (1956) held that, for the purposes of 18 U.S.C. § 401(2), lawyers are not court "officers" in the same category as marshals, bailiffs, court clerks or judges.

^[6]Patricia Lee Refo, Opening Statement The Vanishing Trial, Litigation Online, Winter 2004, at 2,

^[7] Tex. Disciplinary R. Prof'l Conduct Rule 3.04

^[8] Ex parte Taylor, 807 S.W.2d 746, 748 (Tex.Cr.App.1991); Ex parte Pink, 746 S.W.2d 758, 761 (Tex.Cr.App.1988); Ex parte Jacobs, 664 S.W.2d 360, 363 (Tex.Cr.App.1984).

^[9] In re Bell, 894 S.W.2d 119, 127 (Tex.Spec.Ct.Rev.1995) (citing Ex parte Daniels, 722 S.W.2d 707, 709 (Tex.Cr.App.1987)).

^[10] Ex parte Reposa, AP-75,965, 2009 WL 3478455 (Tex. Crim. App. Oct. 28, 2009), reh'g denied (Jan. 13, 2010)

^[11] Id. (“JUDGE BRELAND: I have tried and tried and tried, for the record, to speak to Mr. Reposa about his conduct in Court. There is nothing I can do about his conduct out of Court, but there are things I can do about his conduct in Court. He insults me time after time after time, then comes in and apologizes. I have accepted his apologies many times. And I understand that he has probably got a lot going on, but we all have a lot going on. This ripped it. For the record, I am holding him in contempt-direct contempt of this Court.”