Illinois attorney Thomas W. Gooch III became the object of great hilarity in legal circles this week when he reacted to what he felt was an unethical courtroom tactic by his opposing counsel in a lawsuit by filing this motion in limine:
Defendant’s counsel is anecdotally familiar with the tactics and theatrics of Plaintiff’s counsel . . . . Such behavior includes having a large breasted woman sit next to him at counsel’s table during the course of the trial. There is no evidence whatsoever that this woman has any legal training whatsoever, and the sole purpose of her presence at Plaintiff’s Counsel’s table is to draw the attention of the jury away from the relevant proceedings before this court, obviously prejudicing the Defendant’s in this or any other cause. Until it is shown that this woman has any sort of legal background, she should be required to sit in the gallery with the rest of the spectators and be barred from sitting at counsel’s table during the course of this trial.
Not surprisingly, the motion failed, and predictably, Gooch has become the latest villain in the gender wars, reducing a competent legal professional (according to attorney Dmitry Feofanov’s answer to the complaint) to the size of her bra cup and denigrating women generally. Of course, it is complete conceivable that Feofanov was trying to distract the jury, and took advantage of the assets of his qualified paralegal to do it. If so, would that have been unethical?
Using theatrics to distract or otherwise manipulate the jury’s attention is as old as trials. America’s premier trial lawyer, Clarence Darrow, famously puffed on a cigar with a wire down its center during one opponent’s closing argument, producing such a long ash on the cigar tip that the jury became fascinated with when it would fall on his suit and stopped listening to the summation. Melvin Belli, the “King of Torts,” once laid a butcher paper-wrapped three-foot long lump of something bloody (revealed post verdict to be a leg of mutton) on his table in the courtroom during the trial of his client’s worker’s compensation suit seeking compensation for a severed limb. Now that was distracting…and effective. “You can only do that one once,” Belli told me when I asked him about the stunt.
The ABA’s Rule 3.5, Impartiality And Decorum Of The Tribunal, is part of every state’s legal ethics code. It says in part:
A lawyer shall not:
(d) engage in conduct intended to disrupt a tribunal.
I have long argued that stunts like Darrow’s cigar and Belli’s faux severed leg constitute violations of this rule, but the attitude of the vast majority of practicing attorney is that it should be up to opposing counsel or judges to stop such tricks, and that the risk of having a stunt exposed balances the chances that it will influencing the trial in the trickster’s favor. I believe this reasoning is based on tradition rather than ethics: courtroom theatrics were a well-established tool of the trade before lawyers had to contend with ethics rules, and there is a sense, even among legal ethics experts, that while Darrow-esque maneuvers are not admirable in modern practice, they don’t rise to the level of seriousness justifying bar discipline. Thus it was that one legal ethics specialist opined on a message board that he saw nothing wrong with hiring an attractive actress to nurse her newborn baby within sight of a judge sentencing his client, who had pleaded for leniency because he had a newborn son. His real wife, it seemed, had not lost the weight she gained during the pregnancy.
Even stunts that really do disrupt a courtroom are rarely the subject of bar discipline. In 2009, an attorney trying to demonstrate to a jury what constituted an “imminent threat” produced a hand-grenade and pulled the pin, causing many in the courtroom to duck for cover. The grenade was a dud, and after an investigation neither criminal not ethics charges were filed.
So was the “large-breasted woman” at counsel’s table an unethical distraction? Even by my minority view of 3.5 violations, it is hard for me to see why. I know of attractive female trial lawyers who employ their pulchritudinous assets to entrance male judges and juries, and that is no more unethical than a male lawyer with a sonorous speaking voice using it to his best advantage. I have a hard time understanding Gooch’s point, in fact: if the woman was that so spectacular, wouldn’t she distract the jury from the presentations of both sides of the case? As Ken points out over at Popehat, even if having the voluptuous woman at counsel’s table was a stunt, it was the kind of stunt that it doesn’t pay to object to. “Protip: if your conduct of your client’s affairs requires you to make a statement reassuring the media that you are not per se opposed to large breasts, you’re doing it wrong,” he writes.
I can conceive of guests at counsel tables that would constitute unethical distractions worthy of objection—dead bodies, carnival freaks, chimpanzees, ecdysiasts. But a large-breasted woman?