The Cost Of Contempt

Usually the phrase “contempt of court” is a mere legal label for actions that violate a court order. But when the judge is on the receiving end of your behavior, it doesn’t pay to be a jerk in the courtroom.In a 2006 employment law case brought by a firefighter against the City and County of Denver, attorney Mark Brennan fulfilled the literal meaning of the term, at considerable expense to his client.

Brennan’s repeated disregard for the judge’s rulings, in particular those prohibiting him from making editorial commentary from counsel during questioning on the answers a witness provides, apparently pleased the jury, helping to produce a $1.2 million award for his client after brief deliberations. 

But, the $500 he was fined for contempt of court by the judge during the trial was just the tip of the iceberg.  Fifteen months later, the judge vacated the verdict and has ordered a new trial on the grounds that Brennan’s conduct taken as a whole prejudiced the jury and tainted the jury’s ruling.  The ruling was made on September 27, 2007 and released to the public last week.

The Court held that:

Short of declaring a mistrial or incarcerating counsel for contempt of court, I exhausted the traditional means to conform Mr. Brennan’s conduct to the minimum required for practitioner’s conduct in federal court.  I am firmly convinced that Mr. Brennan’s misconduct, far from vindicating the cause of justice that he clearly conceived himself as championing, in fact, perverted that cause by prejudicing the jury’s verdict and denying the defendant a fair trial.  Accordingly, a new trial is required. . . . Repeatedly, by words, tone of voice, facial expressions, and body language, Mr. Brennan made manifest his most profound contempt for the court, the City and County of Denver, the Denver Fire Department, and ultimately, the entire legal system.  Mr. Brennan’s unconcealed contempt for everyone involved in the proceeding, excepting only his client and his cause, was palpable.

The fifteen page ruling itself, linked above, squeezed a record number of little used adjectives into the legal lexicon, in phrases such as: “disrespectful cockalorum”, “mordaciously sarcastic”, “ingravescent remonstrations”, “recusant practice”, “oleaginous comments”, “concomitant synergistic effects”, “sophomoric and puerile taunts”, “obsequious apologies”, “unctuous acts of affectation”, “contemelious and insolent behavior”, “a thoroughgoing and pertinacious campaign”, “Counsel’s purported contrition was mere assentation in disguise.”, “multifarious transgressions”, “ignominy of counsel’s disgraceful conduct”, and “the trial was inquinated irreparably.”

Only a truly incensed judge resorts to a thesarus so heavily. 

Meanwhile, it is safe to guess that Mr. Brennan’s membership in the bar of the United States District Court for the District of Colorado will soon be revoked or suspended, and that reciprocal discipline will follow at the state level.

The First Amendment protects contemptuous behavior by a street protester.  But, in the American system of the law, lawyers are “officers of the court” and expected to be part of the system that they are relying upon to deliver justice to their clients. 

Far out tactics can work on behalf of a criminal defendant, because the state has no right to appeal a jury’s acquittal in a criminal case.  But, in civil cases, where both sides can seek new trials or appeal a verdict, this approach rarely pays in the long run, particularly for someone seeking relief from the court, instead of trying to prevent it from rendering a judgment.

Given the highly credibility specific and emphatic nature of the trial judge’s finding, the 10th Circuit Court of Appeals is unlikely to reverse the trial court’s decision as an abuse of discretion in an appeal, if there is one.

None of this means that the City and County of Denver necessarily has a strong case.  Losing before a jury always weakens one settlement posture, and it is entirely possible that the firefighter whom Mr. Brennan retained will obtain some sort of recovery in the end.  But, Mr. Brennan’s disrespectful conduct at trial didn’t help his client’s cause.

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Andrew Oh-Willeke

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