Van Iderstine Company v. RGJ Contracting Co., Inc., 548

• Citation: 480 F.2d 454
• Decision Date: 12 June 1973
• Docket Number: No. 548,Docket 72-2225.,548
• Parties: VAN IDERSTINE COMPANY, a division of Darling Delaware Co., Inc., Plaintiff-Appellant, v. RGJ CONTRACTING CO., INC., and Michael Petrow, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

480 F.2d 454 (1973)

VAN IDERSTINE COMPANY, a division of Darling Delaware Co., Inc., Plaintiff-Appellant, v. RGJ CONTRACTING CO., INC., and Michael Petrow, Defendants-Appellees.

No. 548, Docket 72-2225.

United States Court of Appeals, Second Circuit.

Argued May 22, 1973.

Decided June 12, 1973.

Benjamin H. Siff, Thomas R. Newman, New York City (Greenhill & Speyer, New York City, on the brief), for appellant.

Morris Zweibel, Brooklyn, N. Y. (Grant & Helfenstein, Brooklyn, N. Y., on the brief), for appellee RGJ Contracting Co., Inc.

Arthur N. Seiff, New York City (Katz & Gantman, New York City, on the brief), for appellee Michael Petrow.

Before KAUFMAN, Chief Judge, and KILKENNY^* and OAKES, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

On December 29, 1964, a fire gutted a five-story building owned by appellant, Van Iderstine Company, in Long Island City, New York. The structure was part of a complex of twenty-eight buildings used in Van Iderstine's business of rendering butchers' offal and manufacturing bone meal, poultry feed and bone glue. Van Iderstine subsequently brought this action against R. G. J. Contracting Company, a contractor hired by Van Iderstine to demolish the building in question in preparation for new construction, and Michael Petrow, a subcontractor engaged by R. G. J. to perform the job, to recover $980,000 in property damage allegedly caused by the defendants' negligence in setting the fire. A jury, after trial before the Hon. Orrin Judd in the Eastern District of New York, returned a verdict for the defendants. Thereafter, Judge Judd denied Van Iderstine's post-trial motion to set aside the verdict and for a new trial, and Van Iderstine appealed.

Appellant urges us to reverse the judgment below because, in his view, the verdict was contrary to the evidence, the trial judge erred in his charge to the jury in certain respects and the trial conduct of the attorney for defendant R. G. J. Contracting Company was so prejudicial to Van Iderstine as to require a new trial. We have carefully considered the briefs and the record of the trial and find no basis for disturbing the jury's verdict. Accordingly, we affirm.

We doubt whether we would have memorialized this case in a written opinion of the court were there not present in the record evidence of conduct by counsel so disturbing as to require some further discussion. During our customary reading of the briefs and examination of the record in preparation for the argument of the appeal we discovered a pattern of behavior by several lawyers who participated at trial that was shocking, unbecoming officers of the court and lacking in concern for professional integrity and responsibility. Since the courts must never provide a sanctuary for such gross misconduct as was demonstrated in this case we shall have something to say about the events at the trial.

We note initially that had more than an insubstantial portion of counsels' intemperate behavior been brought to the attention of the jury, we would have had no restraint in ordering a new trial. The attentiveness of the district judge, however, spared the jury from conduct that we believe would have fatally infected the trial. Although it is our judgment that the verdict was untainted by the acrimony that occurred outside the jury's presence, that alone cannot excuse the untoward behavior of counsel.

Canon 7 of the Code of Professional Responsibility sets forth the elementary maxim that "A lawyer should represent a client zealously within the bounds of the law." Disciplinary Rule 7-106 (Trial Conduct) of the Canons, however, provides that

(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:

(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.

Moreover, Ethical Consideration 7-37 provides:

In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer in his conduct, attitude or demeanor towards opposing lawyers. A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.

With this backdrop, we turn to a discussion of several examples of the conduct we have found particularly offensive.¹

During the direct testimony of Daniel Roff, vice-president of R.G.J., Mr. Mangiatordi, counsel for defendant R.G.J., questioned the witness on the relationship between R.G.J. and defendant Petrow. The following colloquy took place:

Q. When Petrow was contacted — in your contacting Petrow, how did this come about as far as Van Iderstine was concerned?

Did you go into the full set of negotiations with respect to the operation of the demolition, et cetera?

A. I brought Mike Petrow in to do the demolition. From there on, Mr. Goonan Van Iderstine\'s plant manager knew just what he was going to do with his equipment and I had no further —

Mr. Greenspan counsel for Van Iderstine: I object to that. The contract speaks for itself.

Mr. Mangiatordi: It\'s not a contract.

The Court: What Goonan knew, the witness can say.

Mr. Mangiatordi: I object to the comment by counsel.

The Court: He was making an objection. I think his comment was in addition to his objection.

Mr. Mangiatordi: I believe he referred to something as a legal term that your Honor denied me to make a statement with respect to it.

The Court: Ask your next question.

Mr. Mangiatordi: He ought to refer to it as a Plaintiff\'s Exhibit.

May I approach the Bench for a minute, please?

The Court: All right.

(The following occurred at sidebar).

Mr. Mangiatordi: Mr. Greenhill co-counsel for Van Iderstine insists on making faces and showing exasperation from my questioning. I am going to ask that he discontinue or he be excluded from the courtroom.

Mr. Greenspan: Mr. Greenhill has been looking at some notes —

Mr. Mangiatordi: That\'s not true.

Mr. Greenspan: How can you say it\'s untrue. You have some nerve. You don\'t know what you are talking about.

Mr. Mangiatordi: Judge, if this continues —

The Court: The witness cannot tell what Mr. Goonan was trying to do. Let\'s continue.

The able trial judge unfortunately permitted himself to be drawn into the dispute between the attorneys. He was often interrupted discourteously and abused without reason by Mr. Mangiatordi, as the following testimony during plaintiff's cross-examination of Roff illustrates:

Q. Mr. Greenspan Isn\'t it true when you do demolition work and there is steel in the building —

Mr. Mangiatordi: I object to the question.

The Court: Overruled.

Q. Isn\'t it true when you do demolition work and you have steel in the building that you have to use a torch to cut it?

Mr. Mangiatordi: I object to the question. I don\'t know what he\'s referring to when he uses the words "when you do demolition work." I object to the form of the question.

The Court: Overruled.

Mr. Mangiatordi: Is the word meant generally, Judge, did you, any person?

The Court: I think this is dealing with his experience as to demolition work generally.

The Witness: I don\'t have experience with demolition work. I couldn\'t answer that.

Q. You were a former fireman, were you not?

A. Yes, sir.

Q. In doing demolition work is it necessary to use a torch to cut steel?

Mr. Mangiatordi: I object to that.

The Court: He can answer that if he knows.

Mr. Mangiatordi: I can answer that question.

A. If you have steel and the steel is put together with bolts, you don\'t need a torch.

Mr. Greenspan: I move the answer be stricken.

The Court: No. I will let it stand.

Q. If you say it was put together with bolts, do you mean that you have to use a torch to cut them or do you mean that you —

A. No. You can use wrenches to take out bolts.

Q. Supposing the size of the metal is so large and they are not put together with bolts and you have to cut it, you have to split it, how would you cut it?

A. You would cut it with a torch.

Mr. Mangiatordi: I object to that. He\'s trying to make him an expert on that.

The Court: I let you make him an expert on fire. I will have an expert on demolition.

Mr. Mangiatordi: He was a fire marshal. He was an expert. He is not an expert on demolition and on cutting metals.

The Court: We had a statement —

Mr. Mangiatordi: Judge, I would like to go to the side bar again, if your Honor pleases.

The Court: We will take a short recess now. The jury go back to the jury room and don\'t discuss the case.

(Jury excused.)

Mr. Mangiatordi: Again at this time I have to sincerely ask for a mistrial, Judge.

The evident bias in this case that your Honor is projecting to this jury as against the defendants in this case, it\'s shocking. You are suggesting to these plaintiff\'s attorneys how to try their cases in the first instance. You are telling them what testimony to put in, what testimony to exclude. You are making suggestions to them as to whether or not the word "sub-contractor" should go into evidence as opposed to their intention to prove that there was a joint venture, and now you are trying to show — because this man was projected as being an expert in fire — that that automatically makes him an expert in welding and cutting and demolition and I take exception to that.

The Court: No. Because Mr. Greenspan had just put in a couple of statements about his having worked on demolition jobs before. You have a right to file a Certificate of Bias. Do it any time.

Mr. Mangiatordi: Judge, I am in the middle of trial and I don\'t get out of here until 6, 7 o\'clock at night.

The Court: I don\'t keep you that long.

Mr. Mangiatordi: I am here at night. You may not know it, but I am here until 7 o\'clock at night.

It\'s evident that what you are doing is really projecting to the jury and I ask you, please, in the interests of justice to give us an opportunity to present the case in a fair light and not project yourself into the case

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