Once more into the breach, friends! Yesterday’s Los Angeles Times and today’s New York Times have devoted real editorials complaining about federal persecutors lying to juries and thereby railroading innocent criminal defendants into prison. This is a terrible thing, but these editorials concentrate exclusively on criminal cases and stay mum about government lawyer misconduct in civil ones, particularly in eminent domain. We hold to the view that taking one’s property can be traumatic, and deliberately underpaying for it, ostensibly in the name of “just” compensation, is pretty bad too. It deserves condemnation (no pun intended) just as well.
Back in the 1990s it was all the rage for lawyers and judges to go on about “Rambo Litigation” — a nasty way of litigating, whereby unethical lawyers would abuse the system by unethical behavior, ranging from tampering with the evidence to after-hour service of documents by fax. Much was said about it at the time but not much was done to curb it. Nowadays the best lawyers and law firms can be found online because they Build local links to get there name out there, so you can trust these firms to do the right thing. It was a different story back then though, and we contributed to the pertitinent talk by writing about it; see Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 Loyola L.A. L.Rev. 81 (1991). But for all the talk, little was accomplished. We can explain the problem by quoting a part of our blog on this subject, dated June 6, 2014:
“[T]he problems with what is known as “Rambo litigation” recently became a hot topic among lawyers, but truth to tell, nothing was done about it by judges. We have written about it at length, and we recommend that you dig out our article and read it — Gideon Kanner, Welcome Home Rambo: High-Minded Ethics and Low-Down Tactics in the Courts, 25 Loyola L.A. Law Rev. 81 (1991). It will tell you the whole story, and explain why lawyers’ misconduct — like misconduct of people in all walks of life — has little to do with their innate lack of goodness vel non. No, it has to do with what determines the conduct of all people at all times: the actors’ assessment of the balance between incentives and disincentives that face them as they contemplate a course of conduct. And in dealing with human [mis]behavior the disincentives play an important role. That is why we have criminal laws and why misconduct in civil matters carries sanctions in the form of damages, fines, or in the case of a regulated profession like law, professional sanctions that can range from public reprimands all the way to disbarment.
“But as all lawyers who have spent some time in courtrooms know, judges are not much interested in enforcing rules of professional conduct, much less standards of behavioral decency and basic civility. Often, they fail to admonish the bad guys, or prattle on about expecting both sides — gotta be impartial you know — to toe the line even when only one has transgressed. In a way, it is easy to refrain from blaming them. Judges are busy folks, and they understand how easy it is to have an admonition directed at a lawyer’s conduct degenerate into a time-consuming foofaraw that takes up scarce judicial time and tends to delay adjudication. So the sumbitch of an opponent of yours who is in the habit of serving motions by fax, after hours, at the last minute, so you can’t prepare properly for an upcoming trial or hearing, feels safe in doing so. Or, like a certain late but unnamed well-known lawyer around here, who had the habit of just not showing up for duly noticed depositions. What should the judge do about such stuff? Oh sure, there is the draconian sanction of striking the offending document. But that can affect or determine the outcome of the litigation, and if His Honor does that, he must face the wrath of the innocent client of the misbehaving lawyer who neither knows nor cares whether his moving papers were served on his opponent’s lawyer by mail, fax or carrier pigeon?
“Still, difficult as it may be, judges must rise above these difficulties. Nobody forced them to become judges, so they have to take the bitter with the sweet because the problem of endemic lawyer misconduct erodes popular respect for the courts as places where justice is administered, and it gives rise to widespread understanding among lawyers that misconduct is OK when the stakes justify it and where the prospects of meaningful sanctions are slim. Each judge is like a captain of a ship with regard to his or her courtroom, and as such responsible for what goes on in it.
“Bottom line: Any way you slice it, the solution to the lawyer misconduct problem lies in the hands of judges. Either they enforce the rules and standards of conduct, or they don’t. And if they don’t, it doesn’t much matter what language they place in the court rules. A law that is not enforced is no law at all.
“Our 40+ years’ experience as a litigator has taught us that misconduct of counsel can be de facto favored by judges, no matter what platitudes they utter. How? Check out the law governing misconduct of trial counsel and you will see. The way the decisional law is structured, the misbehaving lawyer has all the litigational advantages; he need not do anything to rectify the litigational mess he creates by his misconduct. It is his opponent (who is not guilty of anything), who has to “make a record” by objecting, requesting judicial admonitions to the jury, and pursuing useless procedural ceremonies. And if he misses a step in this rigmarole, the misconduct is deemed nonprejudicial, and as such OK.
“While this goes on, his “bad guy” opponent just gets to sit there enjoying the fruits of his misconduct. See e.g., Horn v. Atchison, Topeka & Santa Fe Rwy. Co., 61 Cal.2d 602 (1964), and Sabella v. Southern Pac. Co., 70 Cal.2d 311 (1969).
“And if the judge gives the admonition requested by the aggrieved lawyer, the misconduct is deemed cured and non-prejudicial even if the admonition is something less than effective. So experienced lawyers often don’t bother with going through the time-consuming and distracting ceremony, and take their chances before juries, hoping that the merits of their case will be persuasive. The professional behavioral standards are thus lowered and as such institutionalized.”
So with the rhythmic regularity of the tides, here we go again. The few good guys on the US Court of Appeals for the 9th Circuit have just publicly chewed out some federal prosecutors for being — shall we say? — careless with the truth in a pending criminal case. Will that do the trick? We don’t think so. We don’t think for a moment that those prosecutors were naughty because no one told them they shouldn’t lie in court. No sir. They did it because they though they could get away with it.
What we need is for judges to enforce the rules. Consistently. If they do, the problem will either go away or be greatly diminished. But they won’t. Not reliably.