|Oregon State Bar Bulletin — OCTOBER 2008|
A few months ago, in front of a jury, I heard a lawyer refer to opposing counsel by name and accuse him of "using smoke and mirrors" to confuse the jury. Opposing counsel took the bait and said the other lawyer was merely using "fancy lawyer words" to support his position. In numerous trials, I have heard lawyers tell jurors that opposing counsel was "playing lawyer games." Fairly often, I hear trial lawyers argue against the position of the opposing party as if it were the personal position of opposing counsel. One lawyer recently told a jury that opposing counsel was "trying to make you believe what he thinks happened in this case". In these trials, lawyers, in the professional setting of a trial, placed colleagues’ personal motives at issue. For the moment, the client’s interests and professionalism took a back seat.
Of course, most trial lawyers do not engage in personal expression or attacks. However, some lawyers do so on a regular basis with an apparent belief that this conduct is within the bounds of professional conduct. I hear jurors commonly subjected to the "bandwagon language" of "smoke and mirrors," "lawyer talk" and "lawyer games." I call this bandwagon language because some lawyers appear to be jumping on the bandwagon of lawyer-bashing in a misguided attempt to cozy up to the jury or, perhaps, to convince the jury they are not "one of those lawyers." Believe me, no lawyer has the persuasive power to convince a jury that he or she is not a lawyer.
As a youngster, one of my favorite cartoon characters was Yosemite Sam, the swashbuckling nemesis of Bugs Bunny. Sam could be counted on to liven things up with his short temper and blazing six-shooter. When he was "hoppin’ mad," he would inevitably shoot himself in the foot. As a trial judge, I am often reminded of Sam when I observe trial lawyers take personal potshots at opposing counsel during trial. Unfortunately, when lawyers take potshots at each other in court, they shoot themselves in the foot.
An estimated 25,000 Oregonians serve as jurors each year in state courts. Negative comments about lawyers by lawyers are commonly heard in court by many of these citizens. Such disparaging comments are not necessary, not effective and not appropriate. In my view, lawyers should request a sidebar when opposing counsel makes any comment constituting a personal expression or attack or attributes the opposing parties’ position to the lawyer. At the outset of any such problem, the lawyers and the judge can discuss the boundaries of fair comment as necessary to avoid diminishing our profession in the eyes of jurors.
My view from the bench suggests that trial lawyers sometimes resort to personal attacks inadvertently when anxious about their own level of trial experience and skill. However, I have also observed experienced trial lawyers resorting to personal attacks. By contrast, the most effective advocates express no personal opinions whatsoever about the case or opposing counsel. These lawyers understand the trial is about the parties’ arguments and positions. They generously extend professional courtesies to each other and see no room for personal attacks or expression as a legitimate part of persuasive advocacy. The careers of these lawyers advance by taking the high road and staying focused on their case.
In trial by jury, the parties are entitled to an impartial determination of their dispute based on the law and properly admitted evidence. Parties and counsel should be treated fairly at all times to help achieve this goal. Hence, Rule 3.4 (e) of the Oregon Rules of Professional Conduct (Fairness to Opposing Party and Counsel) provides:
(a) lawyer shall not … in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or 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 ….
See also State v. Parker, 235 Or 366 (1963) (improper for trial counsel to vouch for credibility of witness). Simply put, the expression of personal views and disparaging comments about opposing counsel by lawyers are not an appropriate part of a fair trial process.
The Statement of Professionalism adopted by the Oregon State Bar House of Delegates and approved by the Supreme Court of Oregon, effective Nov. 16, 2006, includes several principles applicable to the conduct of lawyers expressing personal opinions and making disparaging remarks about colleagues in the presence of jurors:
"I will promote the integrity of the profession and the legal system.
. . .
I will protect and improve the image of the legal profession in the eyes of the public.
I will promote respect for the courts.
. . .
I will be courteous and respectful to my clients, to adverse litigants and
adverse counsel, and to the court."
Wisely, the statement defines professionalism as "the courage to care about and act for the benefit of our clients, our peers, our careers, and the public good." Professionalism goes beyond compliance with minimal standards of professional conduct and aims for the highest standards we can muster as flawed human beings.
Many lawyers and judges devote considerable time and energy to increase public confidence and trust in the courts and our profession. This includes exemplary efforts to maintain high standards of competency, increase access to justice and build diversity in the bar. Those efforts are undermined by trial lawyers who leave jurors questioning the integrity of the profession and the court process. When lawyers allow themselves to slide down the slippery slope of personal attacks and criticisms directed at opposing counsel, they run the risk of diminishing their own legal careers and their profession as a whole.
My suggestion? At trial, do not refer to opposing counsel by name and stay away from personal opinion. Instead, make reference to ‘plaintiff’s position," "the plaintiff’s argument" or "defendant would have you believe," etc. After all, the trial is about the parties’ arguments and positions. As soon as a trial lawyer refers to opposing counsel by name, the position of the other party tends to be attributed to the personal views of that party’s lawyer.
Few of us can say we have never verbally disparaged a colleague during the course of our legal career. This is particularly true in the formative years of our practice experience. Certainly, in the heat of trial, it’s easy to lose one’s composure. None of us is perfect. However, I have observed a significant increase in incidents of lawyer expressions of personal opinion and disparagement of opposing counsel during jury trials. This trend should be discouraged by experienced trial lawyers who train new lawyers. Trial practice seminars and CLE seminars should also address the boundaries of professional trial conduct in this regard. As keepers of the flame of fair and equal treatment under law, we must diligently model that ideal.
A commitment to professionalism does take courage. Let us resolve to treat each other with the highest level of respect at all times. Remember, jurors tell their relatives, friends and neighbors what they have seen and heard in court. If jurors observe a greater commitment to professionalism from us, might we not observe a greater respect for our profession by the public
ABOUT THE AUTHOR
Richard C. Baldwin has been a Multnomah County Circuit Court Judge since 2001.