Sunday, October 27, 2019

"[J]ust a flinch reaction"

It’s fun to attend trial, isn’t it? Just don’t get too caught up in the action.

In Hayes v. Skywest Airlines, Inc., the Tenth Circuit affirmed a summary criminal contempt order against a legal secretary who gestured to a witness for her office’s client not to answer a question during cross-examination by counsel for the opposing party.

The secretary explained both in the district court and on direct appeal that the gesture “was just a flinch reaction.” The district court didn’t believe her, and the Tenth Circuit affirmed, finding that the evidence supported the district court’s determination that the gesture was willful:

“This intentional behavior may have resulted from a momentary lapse in judgment and may have been quickly regretted, but the mere fact that conduct is spur-of-the-moment does not mean it cannot also be willful.”

So the next time you start feeling a bit hopped-up as you watch a trial unfold, be sure to sit on your hands and zip your lips.

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