“Really?”

That was my spontaneous exclamation on November 20, 2018 when a judge abruptly and angrily ordered me in open court to “stop using” words such as “sham,” and to “use legal words.”

And “sham” wasn’t the only expression to arouse the jurist’s pique.  His Honor went on to characterize phrases in my court papers such as “working in concert” and  “spurious legal contentions” as “the sort of things that this Court, for one, is tired of hearing from lawyers.”

Here’s the actual exchange [I’ll spare the casual readers of this post the details of the court case, but the curious can peruse the affirmation which contains the above-quoted “unspeakables” for an overview of the facts and legal contentions: krehbiel v. wnymcs – giacalone affirmation 11-18-18]:

                                                            …

MR. GIACALONE: … [A]nd that’s why we see this whole thing as a sham.

THE COURT:  No, stop using those words.

MR. GIACALONE: Well, how could – –

THE COURT:  Don’t use ruse, sham, red herring, all that stuff.

MR. GIACALONE: Really?

THE COURT:  Stop using it.  Use legal words.

MR. GIACALONE: It is a legal word, Your Honor.

THE COURT:  Sham?  Isn’t that a derogatory word?

MR. GIACALONE: Can I find court cases that refer to shams?

THE COURT:  I don’t – –  You know – –

MR. GIACALONE: For some reason, we can’t express how we interpret the actions of the City. I don’t have the luxury of assuming that they’re acting in good faith, Your Honor.  I observe what they’re doing.

THE COURT:  Well – –

MR. GIACALONE: I’m just saying – –

THE COURT:  I’m searching for words to make sure that I use them correctly.  I read your affidavit in opposition – – or your affirmation, excuse me, not an affidavit, an affirmation.  You use the phrase, working in concert.  There’s other words.  Cannot hide under – – is it a sheaf?

MR. GIACALONE: Sheaf.

THE COURT:  – – of affirmations and spurious legal contentions, and the purported need for rescission seems to be little more than a sham, a manufactured excuse to rid themselves of embarrassing litigation.  Those are the sort of things that this Court, for one, is tired of hearing from lawyers.  Now, I’ll bet if I go to [opposing counsel’s], I can probably find a few.

MR. GIACALONE: Well, that’s the point.

THE COURT:  Let me finish.  I’ll bet I’ll find – – is that where I left off?

THE REPORTER:  Yes.

THE COURT:  Wishful thinking.  Self-imposed requirement of petitioners who evidently wish to control the project.  I mean, there’s a few.  They’re a little more subtle, but your briefs and your affirmations would be a lot less – – a lot shorter and less for the Court to read if you left out the hyperbole and the adjectives used to describe your opponents’ thoughts, arguments, etcetera.  Those are the sorts of things that this Court, for one, is tired of having to wade through in order to reach a determination.  I try very hard to avoid such adjectives in describing arguments and conclusions of counsel and their clients.

                                                            …

My surprise at His Honor’s sensitivity to expressions such as sham and spurious is two-fold.

First, it is not difficult to find either court decisions which characterize activities and legal proceedings as shams (from a dissenting opinion by the late U.S. Supreme Court Justice Antonin Scalia, a per curiam order of the U.S. Court of Appeals, Second Circuit, to a memorandum from our own Appellate Division, Fourth Department), or repeated references to spurious legal claims and defenses in opinions rendered by our state’s appellate courts.

More significantly, the ability of lawyers in a judicial proceeding to “speak freely to zealously represent their clients without fear of reprisal or financial hazard” is so integral to the search for truth and the welfare of society that oral and written statements made by attorneys in connection with a court proceeding are absolutely immune from liability for defamation when such words and writings are pertinent to the questions involved.   New York’s highest court established this legal principle more than 120 years ago, “for the benefit of the public, to promote the administration of justice, and only incidentally for the protection of the participants in judicial proceedings.”  [See, for example, Youmans v. Smith, 153 NY 214 (1897); Park Knoll Associates v. Schmidt, 59 NY2d 205 (1983); Front v. Khalil, 24 NY3d 713 (2015).]

It has always been my goal as a lawyer to thoroughly, accurately, and diligently represent my clients’ legitimate interests, and to do so in a professional and honest manner.  The court papers that so offended His Honor attempted to fully support – factually and legally – my clients’ claims of sham, spurious arguments, and city officials working in concert with the project’s sponsor.  Ironically, my conscientious efforts to explain and support my clients’ assertions appear to have irritated the judge who expressly referenced the length of my last submission:  “Twenty-eight pages.”  [Of course, His Honor did not mention that my affirmation was in response to four attorney affirmations, an affidavit, and a memorandum of law, totaling 31 pages in length (plus several exhibits).]

I may not be the proverbial “sharpest marble in the drawer,” but I can’t for the life of me understand how the words and phrases that I spoke and wrote are not an acceptable part of the legal lexicon.

I also can’t understand why His Honor chose, not once, but twice, to address me as “Arthur” during oral argument, rather than “Mr. Giacalone.”  In contrast, my two opposing counsel were consistently identified as “Mr. ________” and “Ms. ________.”  [Note: During my 42 years of appearing in courtrooms – at trial-level and in appellate proceedings – no judge or justice had ever chosen to refer to me by my first name.]

But I think I understand why His Honor complied (over my objection) with my opposing counsel’s peculiar request to attach to the official “Order and Judgment” not only the two-page transcript of the Court’s November 20, 2018 oral decision (dismissing my clients’ lawsuit), but the entire 34-page transcript of that day’s oral argument.  In doing so, the Court not only went beyond the customary practice in Western New York (and, I believe, elsewhere), His Honor exhibited his unmatched hubris.

With All Due Respect,

Art Giacalone