Appeals court blasts lawyer who 'played the Nazi card' and flouted in limine orders
A California appeals court makes no secret of its disapproval of a lawyer’s tactics in an opinion reversing a verdict for the state in a suit by an injured motorcycle rider.
The lawyer for the California Department of Transportation, Karen Bilotti, engaged in “truly egregious, indisputable instances of misconduct” as she tried to portray the plaintiff, Donn Martinez, as a “low-life biker” with an affinity for Nazi paraphernalia, the appeals court said in an opinion by Judge William Bedsworth. The court said Bilotti’s conduct required reversal and the matter would be referred to the state bar.
Bilotti “played the Nazi card” and made numerous other references to prohibited subjects, conduct that was “unquestionably prejudicial” at trial, the court said.
The June 12 decision (PDF) by the California Court of Appeal, Fourth District, was slated for publication July 7 after the court received multiple requests that it do so. Above the Law, the Metropolitan News-Enterprise and the Associated Press covered the opinion.
A judge had granted in limine motions by Martinez’s lawyer to bar references to Martinez’s membership in a motorcycle club or gang, to any emblems of that gang, to Martinez’s firing in 2003, and to the alleged strapped financial condition of the California Department of Transportation.
Those rulings didn’t stop Bilotti from asserting that California had no money to replace a divider said to have caused the accident, from repeatedly asking Martinez’s wife about his 2003 termination, and from characterizing a club logo as picturing a skull with a “Nazi” helmet.
“In forensics,” the court wrote, “there is what has become known as ‘Godwin’s Law.’ Broadly speaking, Godwin’s law is that the first side in an argument to compare the other side to Hitler or the Nazis loses. Apparently unaware of this rule, Bilotti used Martinez’s damaged motorcycle to make a gratuitous, out-of-the-blue attempt to link Martinez to Nazis.”
She did so with this question during cross-examination of Martinez’s wife: “At the time of the accident, the motorcycle that your husband was riding had a skull picture on it wearing a Nazi helmet, right?”
Martinez’s lawyer asked for a mistrial but was turned down.
When Martinez’s lawyer decried the earlier Nazi reference in closing arguments, Bilotti responded “by paraleptically using the word ‘Nazi’ six times in rapid succession.” A footnote explains that paralepsis is “the rhetorical trick of making a point by telling your audience you don’t want to make that very point.” The footnote cites Shakespeare’s Marc Anthony’s speech in which the character says he came to bury Ceasar, not to praise him.
The court began its opinion this way:
“This is a case of egregious attorney misconduct. That word—egregious—is difficult to write, but nothing else seems adequate. Blessed with a trial judge who allowed it, trial counsel ran roughshod over opposing counsel and the rules of evidence. We have no choice but to reverse.
“Generally, what happened is this: Defendant’s attorney Karen Bilotti would ask a question in clear violation of the trial court’s in limine orders. The question would usually have the effect of gratuitously besmirching the character of plaintiff Donn Martinez. An objection from Martinez’s counsel would follow. The trial court would sustain the objection. Bilotti would then ask the same question again. The trial court would sustain the objection again. And the same thing would happen again. And again. And again. And again.”
At page 11 of the opinion, the court says, “We have recounted the truly egregious, indisputable instances of misconduct. Martinez, in this appeal, asserts there is yet more. But we see no reason to go further. Suffice to say we found enough to establish attorney misconduct at least five pages ago.”
Bilotti didn’t immediately respond to the ABA Journal’s request for comment.
See also:
ABAJournal.com: “Judge who sanctioned lawyer $1M says she ‘sabotaged’ the case by eliciting banned testimony”
