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Van Iderstine Co. v. RGJ Contracting Co.

decided: June 12, 1973.

VAN IDERSTINE COMPANY, A DIVISION OF DARLING DELAWARE CO., INC., PLAINTIFF-APPELLANT,
v.
RGJ CONTRACTING CO., INC., AND MICHAEL PETROW, DEFENDANTS-APPELLEES



Kaufman, Chief Judge, and Kilkenny*fn* and Oakes, Circuit Judges.

Author: Kaufman

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.*fn1

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 ...


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