This blog is devoted to corporate and securities law issues. Therefore I refrain from venturing into other are topics even though they touch upon lawyers and lawyering. Lawyers, however, can learn a lot about trial conduct by reading Justice William W. Bedsworth’s recently published opinion in Martinez v. State, Cal. App. Case No. G048375 (June 12, 2015, certified for publication July 7, 2015). The introductory paragraph says it all:
This is a case of egregious attorney misconduct. That word – egregious – is difficult to write, but nothing else seems adequate. Blessed with a trial judge who allowed it, trial counsel ran roughshod over opposing counsel and the rules of evidence. We have no choice but to reverse.
Here’s are some rules to try cases by according to Justice Bedsworth:
The law, like boxing, prohibits hitting below the belt. The basic rule forbids an attorney to pander to the prejudice, passion or sympathy of the jury.
An attorney representing a public entity commits misconduct by appealing to the jurors’ self-interest as taxpayers.
Attorneys are not to mount a personal attack on the opposing party even by insinuation.
According to Justice Bedsworth, the “pièce de résistance” of the attorney’s misconduct was the defense lawyers attempt to besmirch the defendant “by paraleptically using the word ‘Nazi’ six times in rapid succession”. I believe that this is the first time the adverb “paraleptically” has appeared in a California published opinion. In a footnote, Justice Bedsworth explains that “paralepsis” is “a formidable Greek word for the rhetorical trick of making a point by telling your audience you don‟t want to make that very point”. The actual Greek word is παραλείπο which means to leave on the side.
