In the seven years I have been trying cases before the NYS Workers' Compensation Board and in the NYS civil or Supreme Courts, I have never experienced as unprofessional behavior by a Judge and opposing counsel as I experienced during a recent trial. (* - I will use "it" to describe the Judge only in an attempt to maintain the confidentiality of the Judge's identity. This is not intended to be derogatory in any way and is truly to maintain confidentiality of everyone's identities.)
First, the Judge initiated an ex parte conversation with me. The Judge told me it* had reviewed the documentary evidence and did not think it was sufficient. The Judge completely ignored the fact that its* superiors had remanded the case for further development because, in Board proceedings, the evidence often occurs at the hearings. Testimony was required to clarify the documentary evidence, and my clients were granted the right to take that testimony. (Such development of the record also has potential to protect the claimant because he or she has an opportunity to explain away anything that looks like fraud or abuse. This is how the system is supposed to work.)
Second, the Judge encouraged me to withdraw the issue its* superiors had remanded. I explained that my ethical obligation was to my clients and that, after a lengthy discussion, my clients wanted to proceed with the testimony consistent with the Board Panel Decision that was granted after an appeal. The Judge tried glaring, rolling its* eyes and yelling its* direction. I further explained that I could not withdraw from the trial without an ethical violation.
Third, when my opposing counsel and the claimant re-entered the hearing room, the Judge corrected our error in having an ex parte discussion. The Judge announced it* was trying to get me to withdraw the issue. I again explained that my clients, as well as a Board Panel, directed further development of the record. Thus, I asked to proceed.
Fourth, all parties agreed that since the issue was very limited, I would start with cross-examination and the claimant's attorney would have an opportunity to re-direct the testimony. (Many of the rules of evidence and courtroom procedure are discretionary in Board proceedings, so we can agree to alterations such as these if it will expedite the process.) I was under the mistaken assumption that the "re-direct" would still conform to the customary rules of civility. I did not expect the Judge and my opposing counsel to interrupt my cross-examination with argument that I had to request permission to respond to. Although I have not yet seen the transcript, I expect it to be nearly unintelligible from the many instances of interruption and people talking over each other. All of the yelling gave me a headache and made my right eye twitch.
I admit that I erred in not asking the Judge to recuse herself when it was clear she had determined the outcome of the issue before the first question was asked. Fortunately, in this case, my clients were not prejudiced because the claimant finally introduced the evidence we had been requesting for nearly one year. This evidence clarified the issue and, had it been introduced before the trial, the testimony might have been unnecessary.
I also erred in not stopping the trial when I was being yelled at by the Judge, my opposing counsel and the claimant. It was clear my client was not getting a fair trial. Luckily, the end result was close to the correct one.
Nevertheless, the hearing room behavior was appalling and in violation of the Civility Rules. See NY Ct. Rules, Pt. 1200. I see similar behavior occurring more frequently, although never quite to this level. In another recent trial, my opposing counsel interrupted his own client's testimony, complaining to the Judge that the answer was too long! The same attorney checked his Blackberry messages during the trial and made disrespectful statements about and to the Judge.
This behavior has to stop. The legal profession has a poor enough image in the public eye. Immature, disrespectful and unprofessional behavior by attorneys and judges only decreases everyone's faith in the effectiveness of the judicial process.
Attorneys, here are some reminders of the contents of the Civility Rules:
- Lawyers should be courteous and civil in all professional dealings with other persons.
- Effective representation does not require antagonistic or acrimonious behavior.
- The timing and manner of service of papers [including evidence] should not be designed to cause disadvantage to the party receiving the papers.
- In proceedings, lawyers should conduct themselves with dignity and refrain from engaging in acts of rudeness or disrespect.
- Lawyers should advise their clients and witnesses of the proper conduct expected of them in court and at conferences [or hearings].
- Lawyers should, to the best of their ability, prevent clients and witnesses from causing disorder or disruption.
- A lawyer should not obstruct questioning during a proceeding unless necessary. (This is typically done through objections, not the lawyer's testimony.)
- Lawyers should refrain from making self-serving statements in a proceeding.
- A lawyer should adhere to all express agreements with other counsel.
Lawyers should be mindful of the need to protect the standing of the legal profession in the eyes of the public.
Judges, this is a reminder that the Rules apply to you, too:
- A judge should be patient, courteous and civil to lawyers, parties and witnesses.
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A judge should maintain control over the proceedings and insure they are conducted in a civil manner.
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Judges should not employ hostile, demeaning or humiliating words in opinions or in written or oral communications with lawyers, parties or witnesses.