ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 4: THREATENING YOUR OPPONENT WITH A “PROCTOLOGY EXAMINATION” AND MAKING FACES AT THE JUDGE MAY WELL BE COUNTERPRODUCTIVE
This series is about learning from judges. Here I advocate (hopefully in a civil way) learning from one judgment. That is the judgment of District Judge Chin in the extraordinary case of Revson -v- Cinque & Cinque in 1999 (PC. 70 F, Supp 2D 415). This is a highly unusual case. One would hope it would never have anything equivalent in the UK. However its unusual nature serves to make the point made by the judge “hardball is bad advocacy”.
“The bar should take note, as this case well shows, that Rambo tactics do not work. Judges and juries do not like them. The tactics employed by Burstein here did not prevent the jury from returning a substantial verdict against Revson and they undoubtedly contributed to the result. There is a lesson to be learned. As one commentator has observed, “It defies all common experience to believe that mean-spiritedness is persuasive…. Hardball is bad advocacy.”… (“Incivility is counterproductive. Lawyers should be civil in litigation not only because it is the right way to practice law which it is but also because lawyers hurt their clients and themselves by being mean-spirited, nasty, rude, and generally uncooperative with their adversaries and the court.”);… (“Experienced counsel know that the lawyer who maintains a professional style is the more effective advocate.”).”
The defendant was a law firm. The plaintff its former client. There was a dispute about fees after the client ceased instructing the firm. The claimant’s new lawyer took on the issue with an extraordinary zeal, issuing proceedings against the former solicitors, who then counterclaimed for fees due.
The zeal was to no effect, in fact it appeared to be wholly counterproductive. The defendant obtained judgment for the full sum owed, with the jury noting that they had done work up to four times the value of the sum charged. The judge subsequently listed the case for disciplinary hearings against the plaintiff’s lawer.
THE OPENING WORDS OF THE JUDGMENT
“This case presents the question of when a lawyer crosses the line from zealously representing a client to abusing the legal process. The Second Circuit recently observed that “determining whether a case or conduct falls beyond the pale is perhaps one of the most difficult and unenviable tasks for a court.” Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 340 (2d Cir. 1999). Here, the conduct of Judd Burstein, Esq., counsel for plaintiff Rommy Revson, was clearly and unmistakably “beyond the pale.” Burstein engaged in a pattern of offensive and overly aggressive conduct that multiplied these proceedings and caused significant harm to Robert W. Cinque, Esq., and his law firm, defendant Cinque & Cinque, P.C. (the “Firm”).
Those tactics included the following:
writing a letter to Cinque threatening to “tarnish” his reputation and subject him to the “legal equivalent of a proctology exam”;
making a sham offer to settle by setting an unreasonable deadline for Cinque to respond and then immediately filing suit even though Cinque met that deadline by indicating a desire to discuss settlement;
publicly accusing Cinque of fraud without any concrete evidence to support the claim;
threatening to interfere with the Firm’s other clients, including (i) conducting an investigation to identify those clients, (ii) contacting one or more of the Firm’s former clients, and (iii) seeking permission to send a letter to all the Firm’s clients to inquire as to “experiences, good or bad,” with the Firm’s billing practices;
serving overly broad subpoenas, including a subpoena for all the Firm’s banking records and even a subpoena seeking records from the golf course where Cinque played golf;
threatening to add a RICO claim;
threatening to sue Cinque individually and to seek discovery of Cinque’s personal finances;
threatening to send a letter to the Court accusing Cinque of criminal conduct if he did not capitulate to Revson’s demands;
making good on his threat to “tarnish” Cinque’s reputation by contacting a reporter some weeks before trial, explaining that Revson had sued Cinque for fraudulent billing, and giving the reporter documents as well as names of former clients;
engaging in unfair tactics at trial, including cross-examining Cinque in an unfair manner; and
repeatedly attacking Cinque in an offensive and demeaning fashion, including calling Cinque “a lawyer who … has acted in a manner that shames all of us in the profession,” “a disgrace to the legal profession,” and an example of “why lawyers are sometimes referred to as snakes,” and accusing Cinque of “engag[ing] in the type of mail fraud that has led to the criminal conviction of other attorneys,” being so “desperate for money he resorted to … extortion,” and being “slimy.”
Burstein’s tactics turned what should have been a simple dispute between a client and her attorney over the amount of a fee into a difficult, unseemly litigation that was intended from the outset to damage Cinque’s reputation”
The judgment gives a flavour of the plaintiff’s tacticts.
“On Monday morning, December 15, 1997, Cinque arrived at his office and was greeted by a letter from Burstein dated December 14, 1997. (Id. ¶ 4). In the letter, *421 Burstein threatened to “tarnish” Cinque’s reputation and to subject him to the “legal equivalent of a proctology exam”:”
” In his search for evidence of fraud, Burstein went so far as to subpoena records from the golf course where Cinque played golf, presumably trying to show that Cinque was playing golf when he supposedly was working. (8/25/99 Tr. at 56).”
STRONG OPENING SUBMISSIONS
“Burstein went on the attack right in his opening statement at trial, calling Cinque “a disgrace to the legal profession.” (Trial Tr. at 6). He contended that in December 1997 Cinque was so “desperate for money he resorted to … extortion.” (Id. at 9). He went on to say that the proof was “going to show that there is a reason why lawyers are sometimes referred to as snakes. It is this kind of conduct that gives lawyers a bad name and it’s disgraceful.” (Id. at 17-18). Burstein concluded his opening statement with the following:
There is an old joke about a little boy who’s walking by a cemetery, and he sees a gravestone and it says, Here lies a lawyer and an honest man and he turns to his mother and he says, Mommy, why did they put two people in that grave? What you’re going to find in this case is [that it is] because of conduct like Robert Cinque’s that we have jokes like that, that lawyers are held in such disrepute. …
I’m going to ask you … to make Robert Cinque pay a heavy penalty in the form of damages and fee forfeiture for his horrendous conduct, for his horrendous breach of professional ethics, horrendous breach of Rommy Revson’s trust.
(Id. at 19).
In summation, Burstein returned to the theme, contending that “the reason why lawyers are held in such low repute is [the] kind of conduct” purportedly engaged in by Cinque. Indeed, he called Cinque’s conduct “slimy.” (Trial Tr. at 776).”
“On the third day of the trial, after I made an evidentiary ruling, McPherson, Burstein’s partner, made a face. I admonished her to stop making faces. (Trial Tr. at 600). McPherson responded by saying:
I apologize, your Honor, I didn’t realize I was doing it. I am somewhat surprised at your ruling, and that’s the only reason I’m reacting.
(Id. at 601). I commented that McPherson was “compounding the disrespectfulness” by stating that she had made a face because she was “surprised” at my ruling. (Id.). Burstein responded, “You’re a hundred percent correct, your Honor. I apologize.” (Id.). McPherson also apologized.”
THE RESULT: “RAMBO” LAWYERS LOST THIS BATTLE
“4. The Verdict
“On May 24, 1999, the jury returned its verdict. It found that Revson discharged the Firm “without cause,” that the Firm did not breach its fiduciary duties to her, and that the Firm was entitled to recover $670,000 in fees from Revson. The jury concluded that the Firm performed extraordinary work for Revson, for it determined that the fair and reasonable value of the services provided by the Firm was more than four times what the fees would have been at the Firm’s usual hourly rates. The jury rejected Revson’s claim that Cinque had abandoned her or sought to extort her into giving him a bonus.”
“The judgment contains a detailed consideration of the need for civility.
“Civility refers to “more than surface politeness; it is an approach that seeks to diminish rancor, to reconcile, to be open to nonlitigious resolution.” Shestack, supra, at 8. A lawyer can be civil and courteous while still being tough and aggressive. “Civility is not inconsistent with zealous advocacy.” Robert C. Josefsberg, The Topic Is Civility: You Got a Problem With That?, 59 Or. St. B. Bull. 19, 19 (Jan.1999). It is inconsistent with “Rambo” lawyering, which is characterized by:
A mindset that litigation is war and that describes trial practice in military terms.
A conviction that it is invariably in your interest to make life miserable for your opponent.
A disdain for common courtesy and civility, assuming that they illbefit the true warrior.
A wondrous facility for manipulating facts and engaging in revisionist history.
A hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than factfinding.
An urge to put the trial lawyer on center stage rather than the client or his [or her] cause.
Robert N. Sayler, Why Hardball Tactics Don’t Work, 74 A.B.A. J. 78, 79 (Mar. 1988).
Justice Sandra Day O’Connor has observed that more than half of all practitioners report “dissatisfaction with the profession” and that for many the practice of law has become “pointless and no fun.” Sandra Day O’Connor, Professionalism, 76 Wash. U.L.Q. 5 (1998). She attributes this trend in part to the lack of civility in the profession:”
RAMBO TACTICS DO NOT WORK
“Rambo tactics do not work. Judges and juries do not like them. The tactics employed by Burstein here did not prevent the jury from returning a substantial verdict against Revson and they undoubtedly contributed to the result. There is a lesson to be learned. As one commentator has observed, “It defies all common experience to believe that mean-spiritedness is persuasive…. Hardball is bad advocacy.” Sayler, supra, 74 A.B.A. J. at 80; see also John G. Koeltl, From the Bench, 23 No. 3 Litig. 3, 3 (1997) (“Incivility is counterproductive. Lawyers should be civil in litigation not only because it is the right way to practice law which it is but also because lawyers hurt their clients and themselves by being mean-spirited, nasty, rude, and generally uncooperative with their adversaries and the court.”); Edward M. Waller, Judicial Activists Wanted, 84 A.B.A. J. 116, 116 (June 1998) (“Experienced counsel know that the lawyer who maintains a professional style is the more effective advocate.”).
*436 Incivility and Rambo tactics do not make sense, no matter what the outcome of the case. As Justice O’Connor has noted:
[I]ncivility disserves the client because it wastes time and energy time that is billed to the client at hundreds of dollars an hour, and energy that is better spent working on the case than working over the opponent. According to an English proverb, “[t]he robes of lawyers are lined with the obstinacy of clients.” In our experience, the obstinacy of one lawyer lines the pockets of another; and the escalating fees are matched by escalating tensions. I suspect that, if opposing lawyers were to calculate for their clients how much they could save by foregoing what has been called `Rambo-style’ litigation (in money and frustration), many clients, although not all, would pass in the pyrotechnics and happily pocket the difference.
O’Connor, supra, 76 Wash. U.L.Q. at 9 (footnotes omitted); see also Judith S. Kaye, Lawyering for a New Age, 67 Fordham L.Rev. 1, 8 (1998) (“[C]lients are now realizing that arms manufacturers and lawyers are probably the only ones who gain by policies of mutually assured destruction. It is very expensive to scorch the earth.”).”
THE BROADER PERSPECTIVE
“Civility is also important from a broader perspective:
As lawyers and judges, we live out who we are by our actions. Professionalism is not something to don at the office or take off with our suits and our robes; our behavior continuously demonstrates who we are. We can improve our own lives and spirits, those of our clients, opposing counsel and parties and the community as a whole, if we simply remember that our part in the system gives us tremendous power, to make life better for every citizen…. If every lawyer and judge … would analyze every action she or he takes in light of the goal of ensuring that the system works fairly and efficiently for everyone, questions about professionalism would simply disappear and tremendous good would result for our community.”
THE LAWYER’S CONDUCT
“(1) Burstein’s Abusive Conduct
Burstein engaged in offensive, demeaning, abusive, haranguing, and discourteous conduct.
The proctology letter speaks for itself, and even Burstein acknowledged that the letter was “improper, offensive, and should not have been sent as written” and he acknowledged further that he “went over the line” by writing it. (Burstein 7/15/99 Decl., Ex. HH).
But there was more. Burstein repeatedly engaged in name-calling: he called Cinque “a lawyer who … shames all of us in the profession,” “a disgrace to the legal profession,” and “slimy.” He accused Cinque of being “professionally irresponsible” and so “desperate for money he resorted to … extortion.” He charged Cinque with “engag[ing] in the type of mail fraud that has led to the criminal conviction of other attorneys.” He pointed to Cinque’s alleged conduct as an example of “why lawyers are sometimes referred to as snakes.” By personalizing the dispute and engaging in these repeated offensive, ad hominem attacks, Burstein “[e]ngaged in conduct that is prejudicial to the administration of justice.” Model Code DR 1-102; see also In re Dinhofer, 257 A.D.2d 326, 690 N.Y.S.2d 245 (1st Dep’t 1999) (suspending attorney for saying to a judge, “[y]ou are corrupt and you stink”); In re Kavanagh, 189 A.D.2d 521, 597 N.Y.S.2d 24 (1st Dep’t 1993) (disciplining attorney for violating DR 7-106(C) (6) by making insulting and degrading remarks to and about opposing counsel, including suggesting he was linked to organized crime).
Burstein also engaged in tactics at trial that were simply unfair and obnoxious, including cross-examining Cinque on the basis of criticism directed by Judge MacMahon at Cinque’s firm when Cinque was fresh out of law school and could not have had anything to do with the issue in question, and also by forcing Cinque to choose between having his companion excluded from the courtroom as a potential witness or waiving his right to call her, and then, after Cinque chose the latter, asking the jury to draw an inference against Cinque because he did not call her as a witness.”