09 May Lawyer Sanctioned for Using Trick Pen on Witness

Trial lawyers always look for that “gotcha” moment. Those of a certain age will understand when I recall a law professor who would scream “Perry Mason!” if you tried to suggest something could happen at trial that is unexpected (normally it’s not supposed to, but on TV’s Perry Mason it did every week). As we near the 20th anniversary of the Nicole Simpson and Ron Goldman murders one remembers the famous, “If it doesn’t fit you must acquit” line that helped get OJ Simpson acquitted of the murders. Even the “supposed to be accurate” Law and Order likes to dabble in the courtroom histrionics.

So there’s this huge case against LA Water & Power by a bunch of farmers saying that electricity in the ground shocked their cattle. It’s for hundreds of millions. It’s been going on for 10 years. The farmers’ lawyer tried to debunk an expert witness who said a 1.5 volt shock wouldn’t even be felt by a human. The lawyer handed him a trick pen, telling him it delivers a mild shock. While the lawyer did try to limit the shock to 1.5 volts, according to the ABA Journal Weekly, the judge later ruled that the pen could have delivered up to a 750 volt shock, and also that the pen’s package says it shouldn’t be used on anyone over 60 (the expert was over 60). So he ordered the lawyer to pay a thousand dollar fine.

The lawyer is appealing. He says this is a child’s toy and startles you but causes no real risk or harm. Here’s what I say: my son once handed me one of these trick pens. It scared the bejesus out of me! So I side with the court on this one. A successful lawyer friend of mine once told me – the more tricks you see the more desperate the lawyer probably is. Don’t know if that’s the case here, but interesting nonetheless!