Law as dance, theater, or music: legal procedure and ritual

Cross Currents, Summer, 2002 by Rafael Chodos

After the case had been pending for about two years, and the other side had still not developed an accounting which showed definitively that my client's deceased husband had embezzled anything, my client received an offer to sell her home in which she and her family had lived for over twenty years. Under the existing injunction, she was not permitted to transfer any of her property, so we agreed that I would bring a motion for orders allowing her to sell the home and to use the sale proceeds to pay for her children's college tuition which was just coming up. My argument was that the home should certainly be sold on the terms proposed, and that the original injunction had issued on weak evidence and that the plaintiff, who was the other general partner, had not completed any accounting even though he had all the books and records and two years to work on them. He of course opposed the sale, and vehemently opposed allowing my client to use any of the sale proceeds.

A hearing was held on my motion to modify the existing injunction and in the course of this hearing my client was called to the witness stand and was asked questions aimed at showing that instead of having been an innocent housewife, she was an active participant with her husband in his ongoing program of embezzlement and fiduciary abuse. Wasn't it true that she signed all the checks on the household accounts? Wasn't it true that she was in fact an officer of several of the corporations controlled by her husband which served as general partner of several of the real estate ventures? Wasn't it true that she often helped her husband at the office? Wasn't it true that there was in fact an office in the home, and that she had ready access to all the records kept there?--I made frequent objections to this line of questioning on the ground that before it had even been established that the husband had embezzled anything from the partnerships (and there still was no real proof of that) it was pointless to show that h is wife "participated" with him in anything.

But the judge, who was an old, crotchety man and a sourpuss who evidently disliked and distrusted both my client and me, kept overruling my objections. When my client was finally excused and told to step down from the witness stand, she was visibly irritated and upset. "That sonofabitch!" she whispered to me as she approached the counsel table. The lawyer for the other side overheard what she said, and so did the court reporter who was sitting next to us. Opposing counsel literally jumped up from the counsel table and said, "Your Honor. The defendant has just committed a contempt in your presence and you should punish her summarily." The judge was hard of hearing and asked the lawyer, "What did she say?"--"She called Your Honor a son of a bitch," the lawyer replied in the most unctuous tones he could summon up. The judge then said to me, "Did she do that?"--I responded immediately that my client had spoken to me in confidence, and that if she had said that anybody was a son of a bitch, I am sure it was the op posing counsel she was referring to and not the court.