Posts Tagged ‘court of appeals’

Oregon Court of Appeals issues lesson in manners

Friday, November 28th, 2008

Unless you enjoy reading court cases, no sense in looking at this new Oregon Court of Appeals opinion. It’s an interesting case, even if it’s a bit long. In it, the Court took two lawyers to task over their conduct.

In the underlying case, Tahvili v. Washington Mutual, the Court affirmed a trial court’s ruling barring a California lawyer–one Burton McCullough–for his conduct at trial. Mr. McCullough was specially admitted to practice in Oregon for a trial. According to the Court of Appeals opinion, Mr. McCullough vioalted a trial court order, repeatedly violated trial court rulings and kept trying to get inadmissible evidence before the jury. In the middle of the trial, the trial judge got so angry with Mr. McCullough’s repeated violations that he revoked Mr. McCullough’s permission to specially appear.

The trial judge, Sid Galton, has since retired. Mr. McCullough’s conduct reads like a point-by-point primer on how not to try cases. Or at least how not to try cases in Oregon.

The Court of Appeals took a dim view of Mr. McCullough’s conduct. But it seemed more annoyed by the brief submitted in the Court of Appeals. In their brief, Mr. McCullough and the Portland firm of Greene & Markley argued that the trial judge–Judge Galton–suffered from mental health problems and had anger issues. The appeal brief even denied that Judge Galton had entered an order and kept referring to a “phantom order.” While the Court of Appeals spared details of more wreckage but made clear that the arugment  went further with hyperbole and distortion.

Writing for the unanimous court, Judge Haselton had this to say:

“We pause to express our collective disapproval of such methods of appellate “advocacy.”  We have repeatedly, in both published opinions and public professional fora, condemned ad hominem attacks on trial judges as offensive and improper.  Such “scorched-earth” tactics, when coupled–as they almost invariably are–with lurid and misleadingly incomplete descriptions of the record–are counterproductive.  They impair, rather than assist, the appellate process” (quotations and italics in the original).

In the rarified air of the Oregon Court of Appeals, that’s equivalent to a serious smack down.  Courts are like elephants in that they don’t forget.  Oregon remains a small legal community, and as a result, most of us who practice law here are mindful of how we conduct ourselves. In Oregon legal circles, earning a reputation for being unprofessional or dishonest sticks with a lawyer for a long time.

The other thing of note is that the Court of Appeals correctly protected the integrity of the trial judge. One of the things that’s really important for our system is judicial integrity. We can’t have a fair legal system if judges aren’t accorded respect by lawyers appearing in court. We can disagree with judges. We can dislike their reasoning and take issue with their conclusions, but if we’re to be part of the justice system, each of us owes a duty to maintain the integrity of the system.

David Sugerman