TO-WIT: CONTEMPT OF COUNSEL
“I can do this,” I thought to myself as I walked into the courtroom, smiling sardonically at the pillars of justice that guarded its entrance as I passed by. I proceeded directly to the lectern with my file and stood there waiting, calm and composed.
Now usually I am tense before oral argument, on edge, wired, but not this time. Maybe this time my composure had been informed by the tenor of my prior experiences with this judge, or maybe I was just overcompensating for what I knew lay ahead.
This case has thus far been difficult, not because of the law and not even because of opposing counsel’s decidedly idiosyncratic behavior. What’s made it difficult is that every motion I have filed in this case, and there have been many, has been met with an increasingly intemperate reaction from His Honor. When I filed this particular motion he scheduled a hearing for, as he described it, “the purpose of ripping Plaintiff’s counsel a new one.” Putting the image aside for a moment, there’s nonetheless a bit of comfort that comes from knowing exactly what to expect.
His Honor entered the courtroom from the side door as always and took his seat on the bench. “You again, huh” he said with disdain when he saw me standing there.
“Yes, Your Honor,” I replied. “And as dilatory, unprofessional and incompetent as ever,” I added with a twisted grin, quoting his comments about me from his most recent opinion. “I’m thrilled to see you again as well.”
And with that I launched into my argument, supremely confident that he would interrupt me incessantly, insult me inordinately and make my professional life yet again a living hell with his badgering, his insults, his taunts and his criticisms, and I was right. Grumbling something about my not having previously disclosed the middle initial of my name, he launched into his diatribe du jour, this time accusing me of “lack of candor with the tribunal.” Since he had not previously used it, I got out my checklist of intemperate remarks and crossed it off, noting with some small measure of relief that he was very quickly running out of fresh, new slurs, and most likely did not have the intellectual wherewithal to come up with new ones on his own.
It isn’t so much that his rulings have consistently gone against me, no. That’s life in the law and I can deal with that. And it isn’t because his rulings fly in the face of clearly established precedent either. Rather it’s all those professionally insulting remarks, those wholly unwarranted, vituperative phrases that this unaccountably intemperate judge has thrown around with malice, tidy little venomous expressions like “dilatory” and “lack of candor” that rip and tear at the licensed flesh and, when they make their way into the everlasting print of an opinion, leave permanent, cavernous wounds in their wake. That’s what really has scorched my marshmallows.
When it comes to verbal warfare, I’m perfectly capable of taking care of myself - on a level playing field. The problem here is that this field isn’t level. While there’s a stringent code of conduct that mandates courtesy from counsel to court at all times and in all ways, the import of which is sanctified by the punishing power of contempt, there is really no meaningful corresponding restraint which governs the way judges speak to counsel. Oh sure, there’s the Code of Judicial Conduct, but let’s get real here. It’s administered by the judges themselves, and while many of them might never say “shut up” to counsel, none of them would say “shut up” to a fellow jurist. Accordingly, that Code has all the stopping power of a squirt gun.
No, we lawyers need to deal with the problem ourselves. To that end I propose that our bar association establish a Committee on Comity, comprised of volunteer colleagues to deal with such instances of judicial abuse and to issue sanctions if and when appropriate. If you’re interested to serve, send me an application, your c.v. and a statement from your mental health care provider certifying that you’re mad as hell and you’re not going to take it anymore.
Let me assure you that this is not personal with me but rather purely a professional matter, as it must also be for you. It is critical that we remain above the fray at all times, not only because it’s the professional thing to do but also because we want to end up in fair play heaven where we’re far less likely to bump into His Honor or another one of his intemperate ilk.
I have another argument scheduled before His Honor next month, and I expect more of the same. But I’ll hang in there, knowing that one day soon I’ll be able to stare directly into his dark, shrouded eyes and say “(O)ne more comment like that, Your Honor, and I’ll cite you for contempt.”
Oh, oh, oh, oh, oh, but trust me, its nothing personal.
©2012, S. Sponte, Esq.