Does The ‘Straight Face’ Argument Still Exist?

Recent stories have left me wondering whether the “straight face” argument is still around. That’s the argument lawyers present when going down for the count, flailing, when the argument is so laughably thin as to be transparent. In the words of the poet Carl Sandburg, “if the law and the facts are against you, pound the table and yell like hell.” Is that still a viable approach? I don’t know about you, but I’ve read a lot recently about table pounding.

One recent example: Viet Dinh, the recently departed chief legal and policy officer at Fox has not accepted any responsibility yet for the litigation debacle arising out of false claims from the 2020 election, which led to Fox paying ginormous millions to Dominion. In a speech at Harvard, Dinh blamed everyone for the situation, mincing no words in his unhappiness with rulings by the Delaware judge who heard the case. Isn’t that something we all have done? Tell your client that the reason the case was lost was due to the judge’s erroneous rulings? That’s not new, but what is astonishing is that Dinh seems convinced that if the case had only traveled through the trial and intermediate appellate minefields, it would have ended up before a Supreme Court that, at least in his mind, would have decided in Fox’s favor. That’s quite a leap of faith.

Attention all GCs: take a page from Dinh’s book and tell your CEOs that you are not to blame for bad strategies in litigation that cost them megabucks. It’s all the judge’s fault. I wonder how many Harvard types bough Dinh’s “straight face” arguments.

Here’s another example where the “straight face” argument is useless. A fired Arizona Maricopa County prosecutor has argued at her bar disciplinary hearing that she was justified in prosecuting a bystander aka “gang member” who was taking photos while a protest took place. So, someone in the vicinity of a protest who took photos was, ipso facto, a gang member and, despite absolutely no evidence of any such membership, can be prosecuted, at least by this prosecutor for being in a gang that, surprisingly, didn’t even exist, except in the fervid imaginations of the prosecutor and the cops.

But wait, there’s more! The Arizona disciplinary commission alleges other charges against this overzealous prosecutor, including other false charges that she filed and that were only found when she was on administrative leave (while under investigation). In addition to charging protesters as gang members, she is also charged with presenting false information to the court. You falsely charge protesters as gang members and then present false information to the court. Makes sense, doesn’t it? And guess how this whole sorry mess came to light? An investigative reporter for a Phoenix television station uncovered “dubious claims and made-up evidence.” Any bets on what discipline this fired former prosecutor might face?

And any bets about potential discipline for this Oklahoma judge who spent time presiding over a murder case, texting to and from her bailiff with lots of comments about the trial, the witnesses, and the attorneys? The first thing to do is take her smartphone away. Perhaps “smartphone” is a misnomer since this judge was not very smart.

The petition filed by the Oklahoma Court on the Judiciary alleges a whole bunch of judicial misconduct, including gross misconduct of duty, gross partiality in office and other violations of the Oklahoma Code of Judicial Conduct. The examples set forth in the petition are classic “What was she thinking?” Here are just a few:

“While presiding over a murder trial, the judge exchanged more than five hundred texts with her bailiff that mocked physical appearances, used offensive language, derided the local defense bar, favored the defendant, and other examples of inappropriate judicial behavior. On another matter, when word got out that the judge was shown on camera texting, she had the camera removed. One more example: the judge told a courthouse employee that she was going to have photos taken of men in the hot pink chairs in her chambers, and that the bailiff would then hang the photos on her wall.” (Within either the judge’s or bailiff’s job descriptions? I think not. Sexist? Yes. Stupid? Beyond a reasonable doubt.)

The petition goes on for some pages, with other examples. And it also points out on page 101 that a social media post on Facebook has the judge saying (and I am not making this up) “one day I will learn to be judicial.” Just one of a number of inappropriate social media posts, and she had received training on social media dos and don’ts. Do you think she was texting during that training? The petition asks for an OSC why the trial judge shouldn’t be suspended pending the outcome of the disciplinary proceedings. Her hearing is set for January.

Given the level of dysfunction all around us, it’s not surprising that none of these peeps has offered any sort of apology for their conduct. Chutzpah is the operative word these days. The more out there you are, the less likely you are to apologize, and there are role models for that phenomenon, too numerous to name. But Trump lawyer Jenna Ellis did so in a half-assed way as she entered her guilty plea, driving the apology bus back and forth over Rudy Giuliani. The idea that anyone would have the grace to at least mumble a few words like “I’m sorry” has about as much utility these days as a “straight face” argument.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.