August 9, 2021
Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley discusses some of his least favorite judge and jury decisions throughout his career, including one case where his client received less than equal access to the law.
The article, Bad Breaks in the Court of Law, was published in the August 7 edition of The Examiner. An excerpt from the article is below.
I don’t expect to win every argument before a judge. I never make an argument that is not supported by the law. Our code of ethics requires us to exercise candor toward the judge.
We should never make a false statement of fact or law, fail to disclose to the judge legal authority in our jurisdiction that is known to be directly adverse to the position of the client and not disclosed by opposing counsel, offer evidence known to be false, or disclose any situation in which the client intends to engage in criminal or fraudulent conduct. We are also permitted to make a good faith argument for an extension, modification or reversal of existing law.
I have had many occasions when I thought that my arguments were correct and the court did not agree. Usually I can shrug my shoulders and walk away. On occasion, a ruling angers me. Unfortunately, I have a long memory of some of those cases. If the issue is appealable, I do not hesitate to file an appeal. My success rate in the appellate courts is very high, but I cannot always appeal a bad decision.
One of the first cases I tried was a contract case in front of a judge who is now deceased. We tried the case to the jury, and one of the critical jury instructions is what we call the verdict director, which instructs the jury on how to apply the law to the facts of the case. I submitted my jury instruction, which was in accordance with contract law, but the judge gave the one offered by the defendant, which essentially directed the jury to find against my client.
I complained loudly but to no avail. My opponent later confessed that I was never going to win that argument as the judge and he had been friend in politics. It greatly offended me at the time because my client did not have equal access to the legal system. It was an unfair playing field.
On another occasion I was trying a case and attempting to offer several photographs into evidence, without any objection, showing the dangerous condition that caused my client’s injuries. Loudly and in front of the jury the judge scolded me and told me that I did not need to put all of the photographs in evidence. I was stunned by his comments, and my anger grew until the next recess in the case.
I then marched back to his chambers and yelled at him for several minutes about how he made me look bad in front of the jury and how if he truly believed what he said he should tell me that privately out of the hearing of the jury and by the way, if I want to offer photographs into evidence and the defendant does not object, he should accept them. I probably risked being held in contempt of court, but he later admitted that he was wrong, but he had already rung the bell in front of the jury, so it did not console me.