Friday, September 07, 2012

People v. Whitus (Cal. Sup. Ct. App. Div. - Sept. 6, 2012)

You've got to read this one to believe it.

It's a case study in what not to do at oral argument.  Particularly when you're an attorney who's trying to overturn sanctions imposed against you for repeatedly not showing up in court when you were expressly ordered to do so by the judge.

Here's just a portion of the Court of Appeal's reaction to what the attorney in question -- San Luis Obispo Santa Barbara attorney Darryl Genis -- thought would be a good way to conduct an appellate oral argument:

"It is not an overstatement to categorize Appellant’s oral argument as a parade of insults and affronts. It commenced with his demand that the deputy district attorney be removed from counsel table, and it culminated with his rude insistence that the court 'state for the record that this is not a contempt proceeding.'

In between, the trial and appellate judges were repeatedly disparaged.  The appellate division was referred to as 'the fox [watching] the hen house.' Appellant demanded that each appellate judge disclose for the record whether he had discussed the case with the trial court, saying: 'But it’s common knowledge in the legal community, and you would be insulting me if you suggested otherwise, for us to believe that you judges don’t talk like women in a sewing circle about us lawyers.  You do.  I know you do.'

In response to questions about the adequacy of the appellate record, and whether the recorded proceedings (which, as stated, had been provided to Appellant by the trial court) had been transcribed, Appellant stated:  'I don't need to give you the universe of evidence in these proceedings. . . . You don't need a transcript.' In response to a question regarding a case citation from one of the appellate judges, Appellant retorted: 'It must have been a while since you read the brief.' . . .

In discussing the actions taken in the court below, the trial judge was repeatedly referred to by his first name rather than his title.  When admonished not to do so, Appellant responded as follows:  'OK.  Well, hereinafter, I will honor your request.  But before I proceed to honor your request, I'll tell you that in the 33 years that I’ve practiced law, I've appeared in front of many great men and women judges, including you three.  And I've appeared in front of a few who are an embarrassment to our profession and [first and last name of the trial judge] is one of those people.'

Throughout, the trial judge was castigated, disparaged and even the subject of a veiled threat: 'When I came in and ultimately had a hearing, I had listened to the whole proceeding and I heard everything that [the trial court] had to say, and I addressed that in my arguments prior to his reaching his pre-printed ruling.  And he said he didn't care.  He was the epitome of the completely sealed and closed shut mind.  You know . . .  a human mind is a lot like a parachute.  If it doesn't open, it will get you killed someday.'
These are but some of the inappropriate comments made during the course of the appellate hearing.  Moreover, what is missing from the discussion is the tone of Appellant’s entire argument, something not captured in a written transcript, which can best be described as confrontational, accusatory and disdainful."