Two lawyers who traded mutual insults while taking the sworn statement of a witness have been judged by a federal court in Pennsylvania. Quoting The Taming of the Shrew – “Do as adversaries do in law, Strive mightily but eat and drink as friends” – the court ordered them to dine together to improve their relationship.
Their case concerned a school caretaker who sued a local education authority for alleged discrimination. The lawyers for both sides met to take statements from school authority employees. When the defendant’s counsel, James Ellison, objected to a question put to his client, the claimant’s counsel, Lewis Hannah, responded: “Shut up you are such an asshole”. Ellison’s then reassured his client: “[Mr Hannah]’s off his meds today. Pay no attention to that”.
The meeting later broke up in bitterness and the lawyers became locked in a legal battle against each other. In considering counsels’ conduct, Judge Gene Pratter noted that Hannah’s behaviour was awful. He had four times referred to defence counsel as what the judge termed “a certain unattractive end-piece of anatomy”. Hannah insisted he’d treated the opposition witness, Dr Walker, with respect but he admitted to repeatedly referring to her as “Ms Walker” in order “to get an edge” and to make her feel uneasy.
Judge Pratter ruled that the incivilities in this case were worse than those in a 1992 precedent in which counsel uttered one profanity (“cut the bullshit”) but less bad than a 2008 case in which the word “f—k” and its grammatical variants was used in a deposition 73 times. Quoting a Supreme Court Justice, Pratter reminded the lawyers that civility was “not some bumper sticker slogan ‘Have you hugged your adversary today?’” but it was the mark of an accomplished professional.
The judge ruled that this wasn’t an appropriate case in which to make Hannah pay the fees and costs of Ellison for the aborted deposition hearing; Ellison, after all, was not an innocent bystander in these events. The lawyers would, though, need to get on better so they were ordered to “join each other for an informal meal” to facilitate the “repair of their professional relationship”. Hannah was also ordered to take a course in “civility and professionalism”.
The permissible level of rudeness to a lawyer in England was addressed in a case in 1639. Mr Justice Barckley observed that it was unacceptable to say of a lawyer that “he hath no more law than a monkey” but it was okay to say “he had as much law as a monkey”. The second statement is merely an incomplete truth – lawyers do know as much law as monkeys plus a lot more. What lawyers then called Barckley and his logic, however, involved words never used in even the roughest troop of monkeys.
Professor Gary Slapper is Director of the Centre for Law at the Open University.