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Trials & Litigation
Lawyers’ ‘barrage of personal attacks’ on opponents started with tissue-box toss, appeals court says
A federal appeals court saw a need for a civility lesson when it granted a new trial to a civil-fraud plaintiff because of a “barrage of personal attacks” made by opposing lawyers in a closing argument. (Image from Shutterstock)
Updated: A federal appeals court saw a need for a civility lesson when it granted a new trial to a civil-fraud plaintiff because of a “barrage of personal attacks” made by opposing lawyers in a closing argument.
The 5th U.S. Circuit Court of Appeals at New Orleans said lawyers Stephen A. Khoury of Dallas and C. Gregory Shamoun of Farmers Branch, Texas, had “employed nearly every category of what we have previously held to be improper closing argument.”
Bloomberg Law has coverage of the March 8 opinion.
The personal attacks targeted the opposing lawyer, Andrew W. Mychalowych, and the civil-fraud plaintiff he represented, David Clapper, the appeals court said in the per curiam opinion.
When beginning the closing argument, Shamoun threw a box of tissues at Mychalowych, stating: “I know y’all have a potentiality of crying, y’all might need Kleenex.”
Later, Shamoun said that if Mychalowych had accused him of perjury on the street, rather than in the courtroom, he would have “kicked his butt.” If the opposing lawyer was his child, Shamoun said, he would have “spanked” him for asking so many leading questions.
Shamoun told jurors that Mychalowych defied the judge’s instructions, tried to hide evidence (a reference to misrepresentation of an exhibit), and treated everyone at the trial with disrespect.
“Judge had to scold him,” Shamoun said. “I have never seen anything like this in the over 30 years that I have practiced in this town. Never have I seen what y’all witnessed. I am embarrassed for the profession, ma’am. I’m embarrassed.”
For his part, Khoury implied that Mychalowych had paid a witness to testify, a comment that he later walked back. He also referred to a plaintiff’s expert witness as a “paid prostitute from Michigan” and called the opposing lawyer “deceitful and deceptive.”
The arguments also included personal attacks on the plaintiff, the 5th Circuit said.
Shamoun characterized Clapper as a “‘billionaire’ with a 70-foot yacht who was going after the estate” of a man who had recently died, leaving behind a widow and six children. The plaintiff’s case, Shamoun said, was “insulting to everybody’s intelligence” and “insulting to everybody’s position as a juror.”
Shamoun said he hoped that anyone who could “drum up a lawsuit like Clapper’s” would “understand that they are going to meet their maker,” and that Clapper is not credible.
“He can cry, cry like he did in the first trial, he can cry like he did here,” Shamoun said. “I’m not going to tell you, I don’t like him because it don’t matter what I do or what I don’t. But he’s not a credible person.”
Khoury, meanwhile, called Clapper a “financial pimple.” And both lawyers mentioned several times that Clapper was from Michigan while also suggesting that “people from Michigan have lower moral standards,” the appeals court said.
Khoury did not immediately respond to the ABA Journal’s requests for comment made in phone messages and emails.
Shamoun responded to the Journal’s comment request by forwarding the defendants’ motion for sanctions against the plaintiff and his attorneys, filed in June 2021 in the U.S. District Court for the Northern District of Texas, and U.S. District Judge Brantley Starr’s August 2023 ruling on the request.
“The attached orders say all one needs to know,” Shamoun’s executive assistant, Tatum Gonzales, said in relaying Shamoun’s message to the Journal.
Starr denied sanctions but said the plaintiffs’ “bad-faith conduct permeated this suit,” justifying the payment of more than $2.5 million in attorney fees to the defendants. Starr cited some instances, without specifying which of the plaintiffs’ lawyers were responsible for the conduct.
Starr said the plaintiffs’ counsel continued to explore an issue that was off-limits because of a privilege ruling. In addition, the plaintiffs’ counsel “repeatedly testified for witnesses,” leading to reprimands from the judge. And the plaintiffs’ counsel designated 699 exhibits and 63 witnesses for trial, even though Starr had given each side only 24 hours to present the case. As a result, the defendants had to analyze and respond to each exhibit.
The 5th Circuit used the last section of its opinion to review attempts to impose civility in law practice.
The appeals court noted that a precursor version of the current ABA Model Rules of Professional Conduct had criticized the view that lawyers have a duty to do whatever it takes to win. The U.S. Supreme Court also commented in a 1935 opinion that while a lawyer “may strike hard blows, he is not at liberty to strike foul ones.”
In the 1980s, “Rambo” litigation tactics became a concern, leading the U.S. District Court for the Northern District of Texas to adopt a civility standard in 1988 for lawyers in civil actions. It included a “duty of courtesy and cooperation” owed to the opposing counsel.
“Effective advocacy does not require antagonistic or obnoxious behavior,” one of the tenets said.
The Texas Supreme Court and the Texas Court of Criminal Appeals adopted a lawyer’s creed the next year calling for courtesy, candor and cooperation in lawyer-to-lawyer dealings.
The authors of the 5th Circuit opinion are Chief Judge Priscilla Richman, an appointee of former President George W. Bush; Judge Patrick Higginbotham, an appointee of former President Ronald Reagan; and Judge Jennifer Walker Elrod, also an appointee of Bush.
“We recognize that such unprofessional practices as those that occurred in this case continue to appear in our courtrooms, despite many attempts to eradicate such practices,” the 5th Circuit said. “We remind all practitioners in our court that zealous advocacy must not be obtained at the expense of incivility.”
The case is Clapper v. American Realty Investor Inc.
Updated March 14 at 1:04 p.m. to include the response from C. Gregory Shamoun’s executive assistant, Tatum Gonzales, and to report on the June 2021 motion for sanctions and U.S. District Judge Brantley Starr’s August 2023 ruling.
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