“The ruling’s succubustic adoption of the defense position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners.”
—-Attorney Benjamin Pavone’s most spectacular of several ethically (and rhetorically) dubious statements in his appellate brief for the plaintiff in the case of Martinez v. Stratton.
This was one of those cases where the winner actually loses. The plaintiff was awarded about $8,000 in damages while most of his claims were rejected. The trial court also denied plaintiff’s petition for approximately $150,000 in attorney fees. The plaintiff then appealed the denial of his fee petition. In both the notice of appeal and the briefing, plaintiff’s counsel engaged in the kinds of rhetoric regarding the trial judge that are frowned upon, to say the least. Plaintiff’s Counsel called the female judge’s order “disgraceful,” accused her of “intentional” error motivated by political bias, and condemned her “mindless antipathy” toward his client.
The new California rules have a version of ABA Model Rule 8.2 that states
“A lawyer shall not make a statement of fact that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge or judicial officer, or of a candidate for election or appointment to judicial office.”
Attorney Pavone would have been skating dangerously close to it, if not for the fact that his conduct occurred before the new Rules went into effect. Never mind: he appeared to nick a number of the old rules as well; at least the appeals court thought so, since it referred Pavone to the bar for possible discipline. (It also rejected the appeal.) The old version of California ethics rules in California’s Business and Professions Code section 6068
stated that it is the duty of an attorney to “maintain the respect due to the courts of justice and judicial officers.” Thus disrespectful statements made in court filings are grounds for attorney discipline or contempt.
The appeals court’s opinion not only affirmed the judgment and awarded defendants their costs on appeal, but also reported plaintiff’s counsel to the state bar for misconduct.
In addition to impugning the judge’s independence and integrity, the main complaint of the appellate judges seems to be that Pavone engaged in gender bias against the trial judge by using “succubustic.” I see a lot wrong with that quote, including the fact that it is incoherent, but boy, finding gender bias is a stretch. “The notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as “succubustic.” A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period,” the ruling says.
The lawyer’s statement does not call the judge a succubus, however, and I’m not at all sure Pavone wouldn’t have used the same description if the judge was a male. He says that the ruling is “succubistic,” not that the judge is a succubus. Since it makes no sense to say the ruling was having sex with a sleeping man, I assume that what the lawyer meant was that the ruling simply adopted the defense position. The succubus, in many traditions, doesn’t just have sex with the sleeping victim, it also “sucks” the essence of life out of him, sometimes causing death. That is also the way succubi are frequently portrayed in horror movies—trust me, that a genre I know extremely well. So “the ruling’s succubustic adoption of the defense position” just means that the judge adopted the defense’s position as her own. That’s not gender bias.
But then, this is California, after all.
I have no idea what “pseudohermaphroditic misconduct” is, however, or what “prompt one to entertain reverse peristalsis unto its four corners” is supposed to mean.