Civil Litigation Legal Topics Litigation Strategy

Misconduct or Misinterpretation, You Decide

The ABA Journal reports that a Chicago lawyer wants a judge to exclude a buxom woman from the opposing counsel’s table at an upcoming trial because it is claimed that “the sole purpose of her presence at…counsel’s table is to draw the attention of the jury away from the relevant proceedings.” Is this an example of attorney misconduct, or simply the coincidental use of a buxom paralegal assistant?

Here’s the low-down on trial misconduct:  Misconduct has been defined as “a dishonest act or an attempt to persuade the court or the jury by the use of deception or reprehensible methods.” People v Rhinehart (1973) 9 C3d 139, 154, 107 CR 34, disapproved on other grounds in People v Bolton (1979) 23 C3d 208, 213, 152 CR 141. To establish misconduct, it’s not required that there be any showing of bad faith or intentionality. People v Bolton (1979) 23 C3d 208, 213, 152 CR 141.  

There is no formula to determine whether improper remarks or conduct by counsel will constitute prejudicial misconduct. This determination depends on the facts and circumstances of each case. The court takes into consideration:

  • The nature and seriousness of the remarks and misconduct;
  • The general trial atmosphere, including the judge’s control;
  • The likelihood that the jury will be prejudiced; and
  • The effectiveness of an objection or admonition under the circumstances.

In the case of the allegedly distracting paralegal, it seems that it would be easy for the court to determine whether or not she also possessed the legal experience and skills to be in the courtroom. It should only be considered theatrics — and thus maybe attorney misconduct — if she lacks a legitimate reason for being there. 

Is this just an example of sexism in action — or maybe, more accurately, the exploitation of sex? What do you think? I’m interested in your comments.

For more on counsel misconduct, go to CEB’s California Trial Practice: Civil Procedure During Trial, chap 16.

One reply on “Misconduct or Misinterpretation, You Decide”

The judge would probably allow it without inquiry in most cases from my experience. But, if the judge suspected something untoward, then the order would probably restrict the wearing of form fitting or revealing outfits. I doubt the “paralegal” would be banned altogether.

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