A Call to Order : Lawyers, Judges Seek Courtroom Civility as Hustwit Case Begins

Perhaps everyone in Division 113 of the Van Nuys Municipal Court was suffering a bit of post-lunch hypoglycemia.

Perhaps they all recognized the duo in the second row: reporters.

For whatever reason, courtroom decorum burst out everywhere one recent afternoon in the contentious case of The People vs. Daniel Hustwit.

Within a matter of minutes, the court reporter apologized to the judge for being tardy, the defense attorney apologized to the judge for interrupting him, and the judge apologized to the defense attorney for interrupting him back.

But civility at the hearing for Hustwit, the Century City defense attorney who in March called a prosecutor and bailiff “asses” and allegedly challenged the bailiff to a fight, soon began to slide--just as it has done in courtrooms across the country, many legal types grouse.

“Your honor,” defense attorney Charles Kelly Kilgore sneered as the case’s two prosecutors huddled repeatedly with their boss, “I had a mentor when I was in law school. Can I have him come down here and help me?”

Rhetorical jousting, of course, is a much-revered talent when it comes to the law, not unlike “trash talking” in pickup basketball games, except attorneys typically begin their jibes with “Your honor,” whereas roundballers prefer “Your mama . . .”

But violations of courtroom etiquette have gone beyond the point where the occasional attorney removes the rubber safety tip from his verbal foil to gave his opponent a good sharp poke, courtroom fencers say. That’s why lawyers and judges from coast to coast are pondering stricter rules of etiquette.

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During a Washington state deposition a few years back, the story goes, one attorney sent a sizable gob of spit sailing over the head of his adversary. And in 1994, outside a Van Nuys courtroom, prosecutor Renee Urman suggested Encino defense attorney Alex Kessel take a Valium; Kessel suggested Urman take some diet pills.

Some lawyers think things are getting out of hand.

“You can be strong for your client [without] treating the other person badly,” said Donald R. Fischbach of Fresno, former president of the State Bar of California, who spent much of his one-year tenure promoting that notion.

Of course, his stint as president began and ended in sync with the O.J. Simpson criminal trial--the nadir of attorney conduct in America, some say. And his message, Fischbach agrees, was not so much lost as flouted, trampled and pummeled.

While New York’s top judge ponders a code of civility, and various local California bar associations implement voluntary codes of conduct, some in the profession suggest that counsel-to-counsel relations have really not soured much at all, because they were never so cordial as some solicitors think they remember.

“The good old days weren’t the good old days,” said UCLA law professor Peter Arenella. “The only reason . . . people might suspect an increase in intemperate remarks is that the media is paying more attention to the courtrooms since the O.J. Simpson case. Unfortunately, the O.J. Simpson case provided good examples of sometimes-petulant lawyers acting like children in front of a judge who was not always eager to put them back in their place.”

In the 1969 trial of the Chicago Seven, for example, “there were almost daily occurrences of lawyers snapping at each other, as well as at the judge,” Arenella said. “Some of the comments in that case would make what [Hustwit] did look mild.”

Variously deemed “chest beating,” “not that big a deal” and plain “dumb” by court watchers, what Hustwit did was, first, imply that Deputy Dist. Atty. Michael Pargament and bailiff Michael Ascolese were long-eared, slow-moving pack animals. Then he said to Ascolese: “If you want a piece of me, take off your gun and badge and let’s go outside.”

It was that alleged challenge to combat that has landed Hustwit in court--that and his refusal to apologize--on a “fighting words” charge. But he contends that his comment came only after Ascolese issued an “unspoken” invitation to fisticuffs.

A 31-year-old who dresses in double-breasted suits and sports a goatee, gold earring and ponytail--as does his attorney--Hustwit said that in California tensions in criminal trials have been heightened recently by three-strikes laws. It used to be that a defense attorney’s loss meant his client was going away for, say, a few years. Today, losing any felony case may send his client to prison for life.

“Now prosecutors have all the cards to play,” Hustwit said before the hearing earlier this week.

Hustwit’s attorney, Kilgore, added that even with three-strikes laws, “it’s always better between the defense attorney and prosecutor in criminal cases than in civil cases.”

Difficult as it certainly is to sit out a good round of lawyer bashing, attorneys remind us that they perform the majority of their work for non-attorneys. And when was the last time a plaintiff in a potentially lucrative civil suit stood up and demanded that his lawyer lighten up on those poor defendants?

“Part of the influence here is that clients are more demanding in absolute loyalty,” said Rex Perschbacher, associate dean at UC Davis’ King Hall School of Law.

As the jury heard opening arguments in the Hustwit case Thursday, attorneys and judges from around the country were preparing for a gathering Sunday in San Francisco. Titled “Conference on Professionalism for the 21st Century,” the group will consider how to coax lawyers into being nicer to each other.

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One idea, since most practicing attorneys seem to think additional rules won’t do the trick, is a system of “peer counseling, peer pressure” now being experimented with in Santa Clara County and other places, said conference speaker Ann Ravel, a member of the state bar’s Board of Governors. The idea is for experienced attorneys to advise newcomers about proper behavior and to give the occasional querulous whippersnapper--or old-timer, for that matter--a verbal noogie.

“The practice of law is a lot less fun,” said Ravel, a 23-year member of the bar. “People just don’t enjoy getting into hassles with other people, whether you’re a lawyer or not.”

About the time Ravel was lamenting the lost joys of lawyering, opening arguments were getting underway in the case of Daniel Hustwit. And a dozen other attorneys had gathered in Division 113 to watch the fun. After all, Mr. Bumble in the Dickens novel “Oliver Twist” famously got away with calling the law “a ass.”

But the jury is still out--or will be next week--on whether you can refer to officers of the court that way. Or at least whether you can do so while asking if “you want a piece of me.”