A Shocking Litigation Strategy

When I was in law school I didn't plan to be an appellate specialist.  Hell, I didn't even know such beasts existed outside of a few big money firms where I would almost certainly not go to work.  I planned to be a litigator, to be the guy indignantly objecting in front of a jury, rather than the one calmly discussing the issue with a panel of judges months later.  But I've come to enjoy how appeals rely on a set universe of facts (for the most part) and are fairly predictable, at least when it comes to how arguments proceed.

I can confidently say that I will never experience anything like this while arguing before the Fourth Circuit.

A lawyer in Utah named Howarth was cross examining an expert witness, Dr. Meliopoulos.  It was, according to a court decision, an "aggressive" cross examination, which is one of those things that don't always come across on the cold written page of a transcript.  At some point, Howard handed the doc a pen, only it it wasn't actually a pen.  It was, as the court described it:

an electronic device disguised as a retractable pen, and Mr Howarth represented it to be a pen.

The court further described the device as one that:

is sold as a novelty item and is designed to give unsuspecting individuals an electric shock if they press the button to extend or retract the pen cartridge.

The product came with multiple warnings about health conditions, including that it was "not recommended" for those over 60 years of age.

Guess how old Dr. Meliopoulos is?  Over 60, at any rate.

Howarth proceeded to question the doctor in a way that required him to press the button and get shocked.  It's unclear why this was relevant to the proceedings although Above the Law has some more details:

Dr. Meliopoulos explained that a person wouldn’t even feel it if they completed the circuit on a 1.5 volt AAA battery. That prompted Howarth to say the following:

a. 'Sir, you just told the jury that if you completed the circuit with this AAA battery, you wouldn’t even feel it right?'

b. 'Sir, in this pen, I put a AAA battery. The circuit will be completed when you press the back of the pen. Would you like to see whether you can feel the AAA battery, Sir?'

c. '[g]o ahead and push the back of the pen and tell the jury whether you feel it or not.'

Meliopoulos complied, which he probably shouldn’t have. Because electric shock pens like this may run on 1.5 volt AAA batteries, but they also contain a transformer to convert the DC power of the battery to AC current. Delivering up to 750 volts. That is more than enough to kill someone with certain health conditions. Given that Dr. Meliopoulos is over 60, Howarth probably should have asked about his health before jolting him.

Even if it was relevant, being sneaky about it was probably the wrong way to go.

That's certainly what the court concluded.  It found that Howarth had displayed a "lack of candor to the tribunal," which is legalese for he bullshitted it, and that he battered Dr. Miliopoulos during his cross examination.  As a result, Howarth was prohibited form cross examining any more witnesses and forced to pay a $3000 fine.

I have a couple colleagues who had civil practices before they moved into a public defender office.  Without fail, they do not miss the chicanery and stubbornness that seems to rule the world of civil litigators.  Given the stories they've told, I'm not sure that Howarth is as much of an outlier as the court seems to indicate.

I guess I'll stick to the more refined world of appellate practice!