(The title is an uncreative and obvious pun, but on the other hand, how often do I have a chance to make it?)
I always advise lawyers that whenever they have a sudden inspiration that involves a trial tactic that they have never heard of anyone else trying, they need to stop and examine whether there are ethical issues involved. Here is a good example of why that’s a good idea.
Electricity expert Athanasios Meliopoulos, while testifying to dispute the claim of Utah dairy farmers who had sued a power company alleging that current from its plant harmed cattle grazing nearby, said under oath that 1.5 volts could not be detected by a human being.
Don Howarth, an experienced Los Angeles litigator who represented the farmers, decided to undermine the expert’s testimony on cross-examination by giving Meliopoulos a joke shop pen that was rigged to deliver an electric shock. Howarth told the witness that the retractable pen contained a 1.5-volt AAA battery and challenged him to click it and “tell the jury whether you feel it or not.” What he did not tell the witness, or the jury, or the judge, was that in addition to the AAA battery, the pen also contained a transformer that boosted the battery voltage to up to 750 volts, enough to deliver “a harmless powerful shock,” according to the pen’s packaging.
Meliopoulos, a Georgia Tech professor, pushed the ball-point pen’s button and was indeed shocked enough to cause his body to jerk and force him to drop the pen.
How unethical is this? The judge, in fining the lawyer $3000 and issuing other sanctions, listed the breaches:
- He committed battery on the witness.
- He endangered the witness, as the package for the pen warned not to use it to shock anyone over 60, which Meliopoulos is, or in poor health, which the lawyer didn’t bother to ascertain regarding his victim, or using a pace-maker, which the lawyer also didn’t investigate.
- The stunt was designed to deceive the court, suggesting that a 1.5 volt shock would effect someone as the pen did.
- The lawyer told the witness (and thus the court) that the pen only contained a AAA battery. This was a lie. It also contained a transformer.
- After Dr. Meliopoulos was shocked, Mr. Howarth failed to disclose the electronic devices contained within the pen, or how the electricity created by the AAA battery was amplified.
- After the misleading demonstration, Howarth tried to prohibit Dr. Meliopoulos from explaining what happened, and why it did not contradict his testimony.
- Since no issues in the case related to the application of amplified AC current to humans or to cattle, the pen tactic was only intended to mislead the jury and embarrass the witness.
The Utah or California Bars have not yet dealt with this blatantly unethical conduct, but the should, and probably will. The conduct appears to be a clear violation of ethics rules 3.3 (candor to the tribunal), 3.5 (decorum of the tribunal), 4.1 (misrepresentation of material facts), and 8.4 (It’s not nice to set out to cause pain to witnesses…)
Meanwhile, some of the other blogs covering the story opted for the “battery battery” pun. Is that better? I’m torn….
But Brady added.
The judge also faulted Howarth for ignoring a package label warning against its use by people older than 60 such as Meliopoulos.
Brady sided with lawyers for Intermountain Power Plant, who maintained the pen demonstration deliberately misled jurors.
“Witnesses … are called up to answer questions,” he wrote. “To add a requirement that they do this in a physically hostile environment where they may be subjected to electrical shocks without warning is far removed from the decorum and professionalism required by attorneys, and has no place in a court room.”
Howarth was ordered to pay $1,000 to Meliopoulos and $2,000 to the power plant.