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Trial Lawyer of the Year Reversed After Trial Misconduct

Orange County Superior Court Judge James M. Brooks, who was publicly admonished last year for his courtroom manner, after previous, private admonishments, was sharply criticized in an opinion issue last Friday, and published on Monday by the 4th District Court of Appeal, overturning a defense verdict in the case of Haluck v. Ricoh Electronics. The plaintiff's appeal was based almost entirely upon judicial misconduct, claiming that it was pervasive to the point that it deprived the plaintiffs of a fair trial. The Court of Appeal didn't just agree. It went beyond that and ripped the trial judge but good.

We are not persuaded by defendants’ assertion that many of the exchanges between the judge and defendants’ lawyer [2004 Trial Lawyer of the Year Dan Callahan], such as the Twilight Zone colloquy, cannot be judicial misconduct because they were made by counsel, not the judge. That misses the point. Although some of these comments were counsel’s, the judge instigated and encouraged many of them. He also allowed, indeed helped create, a circus atmosphere, giving defendants’ lawyer free rein to deride and make snide remarks at will and at the expense of plaintiffs and their lawyer. That was misconduct. (Cal. Code Jud. Ethics, canon 3(B)(3) [“A judge shall require order and decorum in proceedings”].)

It is obvious that much of the judge’s conduct was not malicious but rather a misguided attempt to be humorous; and defendants’ lawyer played into it, often acting as the straight man. But a courtroom is not the Improv and the presider’s role model is not Judge Judy. We can only imagine what was in the jurors’ minds as they endured a 30-plus day trial in this atmosphere or the impression of the judicial system they took away with them posttrial.

The defense take on the trial was profoundly different. On Callahan's website, the firm had this to say:

An Orange County Superior Court jury voted unanimously after a two month trial in favor of Callahan & Blaine’s client, Ricoh Electronics, Inc. The jury found that Ricoh Electronics did not discriminate on the basis of race or national origin in its promotion, demotion and/or termination practices. Plaintiffs James Haluck and Michael Litton sued Ricoh in August of 2003 alleging that they had been passed over for a promotion by Asian employees. These plaintiffs asserted that the basis of the decision to promote Asian employees was based upon race and national origin. The jury unanimously found to the contrary, vindicating Ricoh’s employment practices and policies. For the first 7 1/2 weeks of this 8 week trial, plaintiffs called witnesses, including themselves. Dan Callahan and Brian McCormack representing Ricoh called three witnesses in a day and a half and rested the case after having cross-examined plaintiffs’ witnesses and destroying plaintiffs’ credibility. Defendants’ witnesses on the other hand had strong credibility with the jury and led to the verdict which was achieved by the jury within five hours of commencing deliberations.

Plaintiffs had demanded in excess of $1,000,000 in economic and non-economic damages and was prepared to seek another $1,000,000 in attorneys’ fees if plaintiffs had won or obtained any recovery.

The net result of the Judgment is that Ricoh is vindicated in its employment practices and has no obligation to pay any further sum to the plaintiffs. In fact, Ricoh is entitled to recover its costs and, at the discretion of the judge, its attorneys’ fees against these plaintiffs. The verdict was entered on the record on March 1, 2005.

Now it's back to the drawing board, with a new trial judge. The full opinion is well worth reading, and you can read the entire opinion here in pdf or Word format. But if you just want to read the juiciest parts, we'll present here the part of the opinion entitled: "THE MISCONDUCT":

We recite only the most egregious instances of the judicial misconduct cited by plaintiffs.

Ricoh sought to introduce a video it used for training or public relations purposes.  (Characterization by the trial court.)  Plaintiffs’ lawyer contended, among other reasons for excluding it, that the video was “prejudicial . . . and it’s a marketing piece and has no bearing on the lawsuit.”  The court announced it would watch the video during the lunch hour and did so together with defense counsel without notifying plaintiffs’ lawyer that he would be present or inviting her to join them.  It then overruled plaintiffs’ objections to admission of the video.

Somewhere midpoint in trial, in overruling one of plaintiffs’ objections, the judge held up a hand-lettered sign, apparently prepared by him, stating “overruled.”  The next day, when the court overruled another of plaintiffs’ objections, defendants’ attorney presented the judge with a different sign, stating:  “Your honor, I want to help you if I may.  This is a much nicer version.  [¶] The Court:  Better than my homemade one.  [¶] Ms. Reinglass:  Plaintiffs object to Mr. Callahan presenting another ‘overruled’ sign to the court.  The court’s sign was adequate enough.  [¶] The Court:  The court will await receiving a ‘sustained’ sign from plaintiff[s] so we can split the benefits here.  [¶] Ms. Reinglass:  How many do I get?”

A week later, when plaintiffs’ lawyer objected to a question, the court apparently used Mr. Callahan’s “overruled” sign.  “Ms. Reinglass:  [I am objecting to a]ny reading of the document not in evidence.  [¶] The Court:  He’s not reading, [he’s] asking questions.  [¶] Ms. Reinglass:  Hopefully he won’t read.  [¶] The Court:  And hopefully he won’t keep talking.  [¶] Mr. Callahan:  Your honor, I didn’t get a chance to make that.  [¶] The Court:  It took too much time to make that sign.  [¶] Ms. Reinglass:  And there’s a sign, and I object to that.  [¶] The Court:  He is directing it to me.  It’s lightening things up.  And the jury nods.”

Midway into the trial, the court stated, “Jeffrey [the clerk], we’re going to the soccer style method here.  Red card, 50 bucks each.  Okay.  If I say, red card plaintiff, write it down, 50 bucks.  Red card defense, 50 bucks.  [¶] We’ll keep a running tab.  End of trial, we’ll collect it from them and we may take you guys [presumably the jury] to lunch at a very nice place.  Okay.  Court has enough money for now, and that will either stop the talking or give you a very nice lunch.”  (Italics added.)

Over the next 20 pages of transcript, during which plaintiff Litton was being examined, defendants’ lawyer raised at least nine objections, six of which were overruled, with no mention of a red card.  Then, when plaintiffs’ counsel stated she was reading the last portion of a deposition, defendants’ counsel stated, “Very good.  [¶] . . . [¶] I probably shouldn’t say very good.  No objection.”  The court states, “That’s an orange card, not a red card.”

During the next 12 pages or so in the transcript, defendants’ lawyer made three objections, two of which were overruled.  As plaintiffs’ lawyer continued her examination of Litton, she noted she was almost finished with a section.  Defendants’ counsel stated “352.”  The court responded, “351 and a half.  [¶] Go ahead.”  After several questions, defendants’ lawyer stated, “351 and three-quarters,” to which the court replied, “Overruled.  Numbers junky.”  No red cards were mentioned.

Over the next 10 pages of transcript, defendants’ lawyer raised two more objections, one of which was overruled.  Defendants then interposed a hearsay objection.  The court asked, “We’re going to have [the expert witness] testify, right?  [¶] Ms. Reinglass:  Pardon me?  [¶] The Court:  We’re going to have him testifying, right?  [¶] Ms. Reinglass:  Yes.  [¶] The Court:  And [Litton] is testifying to his numbers pretrial and questioned on the complaint and not about experts and discovery, so we’ll wait for the expert to tell us what those numbers were and how had he arrived on them.  [¶] Sustained.  [¶] Ms. Reinglass:  May I?  [¶] The Court:  Red card plaintiff, Jeffrey.  [¶] Ms. Reinglass:  I was asking.  [¶] The Court:  5-0.  Next question.”

In testifying as to his emotional distress, Litton stated that he felt like he was in a white room without doors or windows that had no boundaries.  On cross-examination as to this testimony, the following exchange occurred:

“Mr. Callahan:  Q  Have you ever heard of The Twilight Zone?”  [¶]  A  Yes sir.  [¶] Q  Goes kind of like this, do do, do do.  [¶] Ms. Reinglass:  Your Honor, I would just object.  This is argument.  [¶] The Court:  Your objection’s on the record, ma’am.  [¶]  Ms. Reinglass:  Also improper argument.  [¶] Mr. Callahan:  You’re traveling through another dimension, a dimension not only of sight and sound, but of mind, a journey into a wondrous land, whose boundaries are that of imagination[;] that’s a sign post up ahead, your next stop, The Twilight Zone.  Do do, do do.  Do do, do do.  [¶] The Court:  That was terrible.  Get to the question, please.  [¶] Ms. Reinglass:  Noting for the record, counsel was singing The Twilight Zone theme song.  [¶] The Court:  And how the jurors left it will be reflected on the same record.  [¶] By Mr. Callahan:  Q  Endless white room with no doors or windows.  [¶] Is that where you got your idea of this white room theory?  [¶] . . . [¶] A  From where?  [¶] . . . [¶] The Court:  Twilight Zone.  That’s his question.  [¶] The Witness:  No sir.  [¶] Mr. Callahan:  Do do, do, do.  Do do, do do.  [¶] Ms. Reinglass:  I request that counsel stop singing.  As entertaining as it is for the jury, it’s mocking my client and mocking the trial.  [¶] By Mr. Callahan:  Q  Ever heard of The Twilight Zone, the show?  [¶] A  Yes sir.  [¶] The Court:  For the record, he hit a few notes of The Twilight Zone theme song which I don’t see as mocking.  He was off color [sic].  [¶] Mr. Callahan:  I go through life tone deaf and colorblind.  This is tough.”

During defense counsel’s cross-examination of Litton, he read approximately 30 pages of the deposition of Rhonda Stevenson, a one-time employee of Ricoh.  Stevenson was not a defendant and at the time of her deposition no longer worked for Ricoh.  She never testified at trial.  Litton had complained to her about what he believed was unfair treatment.  Litton was asked whether he had read her deposition and then counsel was allowed to read several portions of her testimony and ask Litton if he recalled reading that testimony.  For example, “Did you read . . . where [Stevenson] said you were insincere and tried to manipulate both her and [another employee]?”  “Do you recall [Stevenson’s] testimony that you were a proper candidate for layoff . . . ?  When Litton said he did not recall, the court permitted defendants’ lawyer to read Stevenson’s testimony to that effect.
  During that testimony, plaintiffs’ lawyer raised numerous objections.  At one point she asked to “have a running objection until I add anything new.  [¶] The Court:  That would help.  Same objection that’s been going on all day will be deemed to be made to every question and every answer throughout time.  [¶] Ms. Reinglass:  There may be some I like.  [¶] The Court:  With the same ruling.  Well, until I die.  Same ruling.  Okay.  [¶] Ms. Reinglass:  Just as to Ms. Stevenson’s deposition.  I’ll settle for that for now.”

As defendants’ counsel continued to cross-examine Litton using that deposition, before one question he stated, “Okay.  This one is not good for Mr. Haluck . . . .  [¶] Ms. Reinglass:  Objection to the characterization by counsel.  Improper argument.  [¶] The Court:  It’s a warning.  Just giving the witness a heads up.”  [¶] What’s the question, sir?”
The next day, as defendants’ lawyer again began to cross-examine Litton using the deposition, plaintiffs’ lawyer objected, to which the court responded:  “Overruled.  Objection, 187.  [¶] Ms. Reinglass:  Huh?  [¶] The Court:  I got a number for all these things.  [¶] Mr. Callahan:  187 in the Penal Code, what is that, your honor?  [¶] The Court:  Murder.”

In another instance, when Litton was testifying that he was discriminated against because of his race, his lawyer asked:  “And did you feel that it was based upon your race because of comments by [defendant] Nomura?”  The court sustained an objection as leading.  Counsel then rephrased, asking, “Was there any other reason why you felt that it was based upon your race?  [¶] A  [D]ue to the comment by [defendant] Nomura.”  Defendants’ attorney stated, “What a surprise,” to which the judge remarked, “Aren’t they clever.  [¶] (Laughter).”

As defendants’ counsel was concluding his cross-examination of Litton, the following exchange occurred:  “With that, your honor --  [¶] Oh, do you [Litton] play poker?  [¶] A  No, sir.  [¶] Q  Terrific poker face.”  Plaintiffs’ lawyer objected “to the editorializing by counsel.”  There was no ruling.

After a question by plaintiffs’ counsel, defendants’ attorney stated, “Objection.  Gosh, what is that?  [¶] The Court:  What is it?  [¶] Mr. Callahan:  Hearsay.  [¶] The Court:  Overruled.  [¶] Mr. Callahan:  How about --  [¶] The Court:  No.  Go back to sleep.  [¶] . . . [¶] Mr. Callahan:  Wake me when it’s break time.  [¶] The Court:  It’s very close.  [¶] (Laughter).”  Later that day, when Mr. Callahan made an objection, the court stated, “Don’t wake him up,” to which Mr. Callahan replied, “Hey, I don’t get a lot of sleep.”

The reversal, incidentally, rendered moot a motion filed by the defendant against Michelle Reinglass for sanctions, claiming that the appeal was frivolous. It takes a special kind of chutzpah to run with the circus like that and then threaten the appellant's attorney with a sanctions for having the audacity to expect a fair trial, and then express "shock" that the case was reversed. On a less interesting side note, a "protective" cross-appeal was found to be without merit.

Some media takes on the story focus on the humor of the situation. If we were the plaintiff's attorneys on the case, we'd see nothing funny about it. In fact, we're amazed that she was able to maintain her composure and dignity throughout the trial. Congratulations to Michelle Reinglass for sticking to it and getting her clients the justice they deserve.

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