Even though the defendant in Martinez v. California Dep't of Transportation, No. G048375 (June 12, 2015, ordered published July 7, 2015) was Caltrans, this was not an eminent domain case, but rather a tort case about whether the agency negligently designed a roadway which caused Mr. Martinez to crash his motorcycle.
But no matter. Eminent domain lawyers -- those who represent either condemnors or property owners -- need to read this opinion, because it is about how we conduct ourselves in court.
It starts off with a bang:
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.
Slip op. at 2.
The offending attorney in this case represented Caltrans, and the opinion lays out a series of actions which she undertook that are bad enough in isolation, but when you consider them as a whole, border on unbelievable.
Or maybe not. Each of us probably has at least a story or two about an opposing lawyer who didn't just represent their client zealously, but unfairly. Who didn't just come up to the line of the rules and professionalism, but ignored them wholesale. And we'd bet that in most of these cases, if the court was aware of this behavior, like the trial judge in Martinez it did nothing of substance to curb it. As the court of appeal put it, "[i]magine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it." Slip op. at 2.
Especially if the offending lawyer was a government lawyer. In our experience, it's rare that you see an appellate court (or any court for that matter), call out government counsel for misconduct, much less do something about it. And even rarer for an appellate court to chastise a trial judge for not keeping things under control. We don't know why that is. Maybe because many judges were government lawyers before they came to the bench. Maybe because government lawyers are public servants and aren't driven by the bottom line, so they get much more leeway from courts than you or I would. Maybe it's because the vast majority of government lawyers we have worked with and against are outstanding professionals, and thus trial judges give their colleagues more slack than their brethren and sistren in the private bar. Maybe courts just don't like calling out the government, even when deserved. Only the judges know for sure.
So please read this opinion. It's short, but scary.
In the end, the court of appeal reversed the judgment because trial counsel misbehaved, and because the trial judge let her. The court of appeal also referred the case to the State Bar. Slip op. at 14 ("Pursuant to section 6086.7 of the Business and Professions Code, the clerk of this court is hereby instructed to send a copy of this opinion to the State Bar, notifying it the reversal of the judgment is based solely on prejudicial attorney misconduct. The mailing of this opinion to counsel and its disposition will also constitute notification to Attorney Bilotti the matter is being referred to the State Bar.").
One more reason to read this opinion: the court cited Godwin's Law. Add that to your memory banks for the next time you need a judicial cite to the famous dictum.
Martinez v. California Dep't of Transportation, No. G048375 (Cal. App. June 12, 2015)