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Lawyer Drops His Pencil During Trial...An Accident or Intentional?

It was a train accident.

The train stopped short. My client was thrown within the train. He suffered significant and permanent injuries.

The defense refused to acknowledge they did anything wrong. The defense refused to acknowledge my client suffered significant injury.

This case went to trial.

In Brooklyn.

In Kings County Supreme Court, which is the trial level court here in New York.

The defense attorney was a remarkable lawyer. Sharp. Intelligent and significantly disabled from birth.

He had no arms.

He had no legs.

He used prostheses.

He wrote notes in his notebook using a pencil in his mouth.

During jury selection I needed to get a ruling from the judge so that this defense lawyer would not be able to compare my client's injuries with his own disabilities.

Here was a very successful defense attorney who was born without arms and legs and was able to do many of life's daily activities. I anticipated that he would want to compare my client's injuries with his own disabilities. I expected that he would make the argument to the jury “Look at what I can do in spite of my disabilities and here is Ms. Oginski's client coming in claiming he can't do X, Y and Z.”

Asking the judge to take action immediately prior to trial is known as a motion in limine. No, it has nothing to do with lemons, but is rather a formal request to the judge to decide an issue that arises prior to trial.

We are now at trial.

I'm questioning my witness. The witness is sitting on the witness stand.

I am standing toward the back of the courtroom so that all the jurors can hear what my witness has to say.

During my questioning, I heard something drop and hit the floor but didn't pay any attention to it. I continued asking my witness a question. Then I glanced over at the jury and recognized that they were not paying attention either to me or to my witness.

I looked around the courtroom to see what they were paying attention to.

They were looking at the pencil on the floor that had just fallen.

What would be so fascinating that these jurors would turn their attention away from my question and my witness' answer?

You wouldn't think that someone dropping a pencil on the floor would be very interesting, more like a nuisance.

Except in this case.

I immediately realized why the jurors were focused on this pencil.

They were all trying to figure out how the defense attorney was going to pick up the pencil from the floor.

Remember, he had no arms and no legs.

Certainly watching a defense attorney trying to pick up a pencil without arms or legs would be more interesting than listening to my question and the answer.

We all watched this choreographed scene of the defense attorney contorting himself by standing up awkwardly, bending at the waist and then contorting his mouth so it reached the floor. Then, using his lips and his teeth, actually picked up the pencil from the floor and then began contorting himself again to an upright position before he then contorted himself into a sitting position and resumed ready to write and take notes.

This drama played out over the span of two minutes while everyone in the courtroom paid rapt attention to this contortion. When I say everyone in the courtroom, I mean everyone in the courtroom. The jurors. The judge. The court reporter. The court officer. Members of the public who were simply watching in the back of the courtroom and other attorneys who were observing the trial were paying attention.

I must admit, I was startled and fascinated watching this show.

Once the show was over I continued questioning my witness as if nothing happened.

Except a few minutes later, something happened.

I heard something drop and hit the floor.

It was the same exact sound I've heard only moments earlier.

It was the same exact sound I'd heard moments before the attorney began his contortionist show.

This time, I glanced over at the defense lawyer and looked at the floor. There it was again. The attorney's pencil was on the floor.

I immediately sprang into action. I didn't even give the jurors an opportunity to see what it was that fell on the floor.

It felt like I galloped halfway across the courtroom to pick up a pencil for the defense attorney before he had an opportunity to put on his show again.

I gingerly picked up the pencil and calmly placed it on his table and then before stepping away I whispered into the attorney's ear.

Here is what I told him...

"If you do this again, I'm going to take this pencil and shove it up your nose."

As I walked back to continue questioning my witness, I glanced over to the defense attorney and he had a look of shock on his face.

Later that night I asked myself whether dropping his pencil a second time was simply accidental or intentional.

What do you think?

To learn even more about this incident, I invite you to watch the video below...