One of the two attorneys involved was plaintiff's lawyer James W. Smith, who was suing on behalf of his client, allegedly injured at the local county landfill. Representing the county was Andrew H. Marshall. Marshall wore a pin on his suit, a gold star on a purple background, in honor of his son who had been killed in Iraq.
During the deposition of the plaintiff, the two lawyers disagreed on the scope of the questioning — in particular, whether the plaintiff should have to discuss crimes he'd committed in the past if they were committed more than 10 years ago. When Marshall got pretty fierce with the plaintiff, the following exchange occurred:
Smith: What's the little pin on your shirt mean? What's that little pin mean?A week later, there was another deposition with a different deponent. Again, the two attorneys disagreed on the scope of the questions, and again, the question of the pin came up:
Marshall: It means I had a son that was killed in action serving his country.
Smith: So that gives you the right to browbeat my client?
Marshall: No. It has nothing to do with this deposition.
Smith: Well, fine then.
Witness: Then why do you want to do that to another veteran, because you're mad at the United States?
Marshall: No, I'm not mad at the United States.
Witness: Well, I'm proud of your son dying for me.
Marshall: Well, my son — that's not what I'm here to ask questions about.
Smith: Why don't you go jump in a lake, [Marshall]? Why don't you go over there — where's your pin today?The full transcript shows quite clearly, and the judge decided as well, that Smith deliberately tried to provoke Marshall. The plaintiff's case had been voluntarily dismissed, but the court went ahead and imposed attorney's fees on Smith despite the dismissal.
Marshall: I'll be serving you with —
Smith: Where's your pin today?
Marshall: Get out of my office.
Smith: Don't ever have another deposition set up here. Don't you hit me.
Marshall: I'm not going to hit you.
Smith: We got witnesses.
Marshall: Don't disrespect my son.
Smith: I didn't disrespect your son.
Smith's motion for attorney's fees was rejected pretty strongly as well:
"The Court finds and concludes that the motion was substantially frivolous, substantially groundless, and substantially vexatious, and therefore lacked substantial justification."
Judge Sweat went further:
"While Defendant's counsel personally seeks no remedy for this heartless attack, the Court cannot avoid its responsibility to condemn conduct that is not only decidedly lacking in the civility due to a fellow member of the bar, but is so ignoble as to bring the legal profession in disrepute. At the hearing, Mr. Marshall characterized his response in directing Mr. Smith to leave his office as not the most professional thing to do. Given Mr. Smith's ignominious conduct, Mr. Marshall's response seemed restrained."
And Judge Sweat made sure this opinion had a wide distribution, sending it to all the judges in that circuit and also to the Georgia bar's Office of General Counsel.
The really bad move here? Smith said all of this on the record and thought it was a great idea!
All in all, this is not a terribly effective way to get clients to come to you — assuming the bar doesn't do something about Smith. If your judge writes language like this about you, you probably have messed up big time — and earned yourself a nice spot in the lawyer hall of shame.
