A California lawyer is being sanctioned for inflicting an electric shock on a witness in a Utah courtroom to prove a point.
The incident occurred when attorney Don Howarth of the Los Angeles law firm Howarth & Smith questioned A.P. Meliopoulos, an expert witness called by the opposing counsel, about testimony regarding a 1.5 volt AAA battery.
Howarth was representing Utah dairy farms in a lawsuit alleging electrical currents from a power plant were passing through the ground on dairy farm properties and shocking cows, according to Jefferson Gross, who serves as co-lead counsel with Howarth.
Gross said the opposing side’s lawyer was trying to downplay the current the cows allegedly received by putting a AAA battery on his tongue and face to show that the battery’s current couldn’t be felt. “The defendants wanted to try to use that as some ploy to suggest that this current can’t affect dairy herds,” Gross told Business Insider.
Gross, who is with the Salt Lake City law firm Burbidge Mitchell & Gross, provided Business Insider with a transcript of that portion of the trial in which Howarth tried to demonstrate that the cows could feel the current. The transcript captures the following sequence of questions delivered by Howarth, and the answers given by Meliopoulos.
Q. Sir, you just told the jury that, if you completed the circuit with this AAA battery, you wouldn’t even feel it, right?
A. That’s correct.
Q. Sir, in this pen, I put a AAA battery. The circuit will be completed when you press the back of the pen. Would you like to see whether you can feel the AAA battery, Sir?
A. What are you going to do?
Q. Go ahead and push the back of the pen and tell the jury whether you feel it or not. The top of the pen.
A. I got an electric shock.
Q. And you felt it, didn’t you, Sir?
A. Yeah. What is this?
Q. It’s AAA. May I have it?
A. It cannot be AAA.
Q. Will you open it up, Sir?
Meliopoulos admitted later in the transcript that a AAA battery was indeed inside the pen, but added, “I’ll take it to my lab and show you the trick you placed.”
The court ruled Howarth did not tell the witness, court, or opposing counsel that the novelty pen was designed to transform the 1.5 volts supplied by the AAA battery to as many as 750 volts, according to a ruling available on Scribd and first reported on by Above the Law.
The novelty pen’s package says it’s not recommended for adults over 60, kids, or anybody in poor health. Although Meliopoulos is over 60, Howarth did not ask him about his age or health before giving him the pen, according to the court ruling.
In response to the defendants’ motion to remove Howarth from the case, the court instead banned him from questioning any more expert witnesses called by the opposing counsel and ordered him to pay $US2,000 to the defendant and $US1,000 to Meliopoulos.
Utah’s Fourth District Court ruled that Howarth violated its rules of conduct, as his questioning “exceeded the bounds of aggressive cross examination and constituted a lack of candor to the tribunal.” The court concluded he intentionally misled the jury, court, and Meliopoulos.
On top of that, the court also ruled that Howarth deserved to be sanctioned for intentionally resorting to harmful or offensive contact with Meliopoulos. Here’s the court’s findings on that:
“Witnesses are not familiar with trial procedure or the expectations of attorneys. They are called up to answer questions testing their qualifications, memory, and truthfulness, to recall prior testimony and explain any inconsistencies. To add a requirement that they do this in a physically hostile environment where they may be subjected to electrical shocks without warning is far removed from the decorum and professionalism required by attorneys, and has no place in a court room.”
Gross said the entire trial team pushed the pen themselves to feel its shock. “There was no misrepresentations made by Mr. Howarth in the examination, and the transcript airs that out,” Gross told Busines Insider. “And second, this is a child’s toy that isn’t dangerous, and the Consumer Product Safety Commission from our research has determined that it’s safe and only causes a shock to the hand.”
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