(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: Continue reading