Brutal Benchslap: ‘We Found Enough To Establish Attorney Misconduct At Least Five Pages Ago.’

By Joe Patrice

9 Comments /

108 Shares

• Twitter
• Facebook
• Linkedin
• Google +

/ Aug 5, 2015 at 5:32 PM

“This is a case of egregious attorney misconduct.” Those eight words kick off a 14-page opinion eviscerating a government attorney for her conduct at trial. It’s an ominous opinion to be sure, but entirely deserved because the opinion is only as deliciously harsh as the lawyer’s conduct is shocking.
Karen Bilotti, a lawyer for the California Department of Transportation (“Caltrans”), dutifully defeated a claim brought by a motorcyclist against the state after he crashed his bike in what even the Guinness Book of World Records recognized as the most complex road interchange in the world. On appeal, a panel of the Fourth Appellate District could hardly contain their shock as they reviewed the trial record.
You know it’s bad when there’s an entire point heading entitled, “The Nazi Reference.”
Simply put, Karen Bilotti ignored a string of motions in limine and repeatedly pursued questions even after the trial judge sustained objections. And the trial judge sat by and allowed her to do it. As Judge William W. Bedsworth wrote for the panel:

Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal.

From the get go, the opinion is spitting nails, logging multiple instances of misconduct in Bilotti’s opening statement before turning to the cross-examination of the plaintiff. Emphasis in the original here:

We count no less than 10 direct violations of the judge’s in limine order in the course of her cross-examination. All the violations and references occurred after a series of sustained objections and clear admonitions from the trial court.

And if you think that’s some chutzpah:

In forensics there is what has become known as “Godwin’s Law.” Broadly speaking, Godwin’s law is that the first side in an argument to compare the other side to Hitler or the Nazis loses. Apparently unaware of this rule, Bilotti used Martinez’s damaged motorcycle to make a gratuitous, out-of-the-blue attempt to link Martinez to Nazis.

Oh yes. Remember this is a case about crashing a motorcycle into a guardrail, meaning that somewhere in the depths of hell, even Hitler looked up from his copy of The Art of the Deal (affiliate link) in complete shock at the prospect of making his way into this proceeding. And that’s before the point heading:

Closing Argument: The Nazi Reference Resurfaces

She brought it up again. Ultimately, the opinion would refer to Bilotti’s Nazi fixation as the “pièce de résistance” of her misconduct, marking the second time that Nazis and French for “resistance” came together to disastrous effect.

Whereas before the Nazi reference was only to a helmet, and was isolated, Bilotti now exploited the opportunity to psychologically link Martinez to Nazis by paraleptically using the word “Nazi” six times in rapid succession. And this time the link was stronger – Bilotti wasn‟t just referring to a mere article of clothing but to Martinez himself.

That was enough for the appellate court. As Judge Bedsworth wryly put it:

Did Bilotti commit misconduct in this case? Let us count merely the most obvious ways.

And after laying out those obvious points, Judge Bedsworth notes there’s still more out there.

We have recounted the truly egregious, indisputable instances of misconduct. Martinez, in this appeal, asserts there is yet more. But we see no reason to go further. Suffice to say we found enough to establish attorney misconduct at least five pages ago.

For Karen Bilotti, it must be a rough opinion to read. Indeed, the only thing worse for her than that fantastic opening sentence is the dispassionate proceduralism of the final sentence:

The mailing of this opinion to counsel and its disposition will also constitute notification to Attorney Bilotti the matter is being referred to the State Bar.

Bunch of Nazis on the appeals panel, amiright Karen?
(Read the complete trainwreck on the next page…)

Judge Complains About Lawyer’s ‘Repugnant Stench’

By Joe Patrice

17 Comments /

82 Shares

• Twitter
• Facebook
• Linkedin
• Google +

/ Dec 18, 2014 at 4:06 PM

This is a new one. Judge Patricia A. Riley of the Indiana Court of Appeals delivered an embarrassing benchslap: she objects to the lawyer’s “repugnant stench.”
Or more accurately, the repugnant stench that the lawyer left on the appellate record. In the opening footnote of Elvers v. Indiana, Riley writes:

In two prior memorandum decisions, our court noted that the record emitted a foul odor consistent with cigarette or pipe smoke, and we asked that those who handle the appellate record refrain from such contamination in the future. See Rice v. State, No. 49A02-1401-CR-12 (Ind. Ct. App. Sept. 30, 2014); Wampler v. State, No. 09A02-1201-CR-61 (Ind. Ct. App. July 3, 2012). It appears that our requests were disregarded because the record in the instant case is permeated with the same repugnant stench. The fact that all three of these malodorous records were handled by the same Deputy Attorney General prompts us to direct this third entreaty to the Office of the Attorney General with the demand that our request for clean, unscented records be heeded.

First of all, cigarette or pipe smoke? Come on. Are those really too difficult to tell apart? One smells like nicotine-fueled nightmares and the other smells like cherry lollipops.
The poor AAG called out in this footnote is Ian McLean. The judges just aren’t taking your invitation to flavor country anymore, buddy. McLean is a 7-year veteran of the criminal appeals division (assuming no stints elsewhere from his initial appointment) of the AG’s office in Indiana. In all that time, he’s handled a boatload of appeals, but the complaints over smoke-contaminated files began only recently.
First, in Wampler, Judge Edward W. Najam Jr. sniped that he’d appreciate documents that weren’t compiled by the Marlboro Man. Then a couple of months later, when ruling on a second appeal handled by McLean, Judge Najam reiterated his issue:

We note, as we have in a prior memorandum decision, that the transcript in this case emits an unpleasant odor consistent with that of cigarette or pipe smoke that is apparent, offensive, and consistent.

But, when Judge Riley decided a McLean appeal just this week, she set aside Judge Najam’s polite prodding and went full-on benchslap.
In McLean’s defense, Bryan Corbin, a spokesperson for the Attorney General’s Office, noted that the record in Judge Riley’s case was already submitted before Judge Najam lodged his objections — in July. That’s some foul, long-lasting stench! Additionally, we don’t really know that McLean is the Cigarette Smoking Man in these cases — it could just be someone who works for him. Not that this excuses him of ultimate responsibility, but it’s worth noting.
In any event, the IndyStar reports that the AG has heard the judges loud and clear and imposed a firm new policy to solve the problem. Banning AAGs from smoking while handling the record? Nah. Once again we look to technology to accomplish what basic human willpower cannot:

“The Attorney General’s Office has shifted this category of criminal cases into a new paperless workflow using electronic scans of court records, not original paper copies,” Corbin said in an email to the Indianapolis Star. “As we now scan such records, the condition of paper in the paper file should not be an issue, at least not for the Attorney General’s Office.”

So smoke ‘em if you got ‘em, Indiana AAGs! The people are buying you a scanner.
You know the drill. Full opinions are on the following pages….
Another judge smokin’ mad over smelly documents [IndyStar]