Dietz, a female programmer, to have sex with him in his office on a number of occasions, in order to keep her job. What happened between Mr. Martin and Ms. Dietz is a credibility question for the jury, and we will prove that plaintiff’s allegations are false. But whether Mr. Leaver streaked, flapped, or struck a pose for Ms. Feldman doesn’t make it any more or less likely that Gil Martin harassed Beth Dietz.”
“Standard relevance analysis, eh, Ms. Murphy?”
“Exactly, with one addition.” Anne rechecked her brief. “While that evidence may be admissible in a ‘hostile environment’ theory, in which the number and pervasiveness of alleged other incidents are relevant, it is clearly inadmissible as irrelevant in this, a quid pro quo case.”
“So, you rest on the difference between a hostile environment theory and a quid pro quo theory of sexual harassment.” Judge Hoffmeier frowned in thought. “It’s quite a technical argument.”
“Think of it as precise, Your Honor.” To Anne, precision mattered in the law, brain surgery, and lipliner. Otherwise it was no fun at all. “The distinction makes a difference because of the impact the evidence will have. Plaintiff’s counsel will be using this incident involving Mr. Leaver to bootstrap his meager proofs regarding Mr. Martin.”
Judge Hoffmeier rubbed his chin, clean-shaven even at this hour. “Any guidance from upstairs, Ms. Murphy? I’ve found no appellate cases on point.”
“Frankly, no, Your Honor. I briefed
“Thank you. I have your argument, Ms. Murphy.” Judge Hoffmeier nodded and turned to plaintiff’s counsel table. “You want in, Mr. Booker?”
“Sure do, Your Honor.” Matt went to the lectern as Anne stepped back. “Your Honor, I like a joke as much as the next guy, and I agree this incident may sound funny to us now. But contrary to defense counsel’s assertion, Ms. Feldman did not think this supposed prank was funny. Mr. Leaver’s conduct constitutes indecent exposure in this and most jurisdictions.”
Judge Hoffmeier’s mouth’s flattened to a politically correct line of disapproval. Anne wondered if she could rescind her flirting.
“Your Honor, we think Ms. Feldman’s testimony is admissible,” Matt continued. “This is proof positive of the type of ‘locker room’ conduct that is encouraged at Chipster.com and at an increasing number of Internet companies. Sexual harassment suits are on the rise in the Internet companies because computer programming is so male-dominated. In fact, ninety-five percent of Chipster’s programmers are male, between the ages of twenty-one and thirty-five, and none of the company’s fifteen supervisors are women. This creates the raucous ‘boys only’ pattern of conduct, which permits conduct like Mr. Leaver’s and Mr. Martin’s to flourish.”
“What about Ms. Murphy’s point that this is a quid pro quo case and not a hostile environment case?”
“I agree with Your Honor that that is a hypertechnical argument. Sexual harassment is sexual harassment. And
Judge Hoffmeier rested his chin on his hand. “It does seem probative to me, especially considering that it is undisputed.”
“I agree, Your Honor, and it is for the jury—not for any of us—to decide whether the corporate culture at Chipster is one in which sexual harassment is permitted. The defendant in the present case is the very CEO of the company, Gilbert Martin.”
“Thank you for your argument, counsel,” Judge Hoffmeier said with finality, and Anne couldn’t tell which way he would rule. She couldn’t take a chance on losing. The evidence would kill her case. Time for Plan B.
“Your Honor, if I may, I have rebuttal,” Anne said, and Judge Hoffmeier smiled.
“The fighting Irish. Okay, counsel, but keep it short.”
“Your Honor, in the alternative, defendant argues that even if the Court thinks the evidence is relevant, it should be excluded under Federal Rule 403 because of the danger of unfair prejudice. Imagine how distracted the jury would be if this evidence came in. Your Honor, we’re talking here about
On cue, the young man sitting behind Anne in the gallery stood up, stepped into the aisle, then unbuttoned his raincoat and let it drop in a heap at his feet. The man was sandy-haired, handsome—and buck-naked. The gallery let out a collective gasp, the court reporter covered her mouth, and the bailiff reached for his handcuffs, but Anne continued her legal argument:
“The image of a naked man commands instant and total attention. It is a riveting, galvanizing image, especially in a courtroom. If it’s permitted, the jury will be so distracted—”
“What
Matt sprang to his feet, pounding the table. “Your Honor, we object! This is an outrage!”
Pandemonium broke out in the gallery as the naked man grabbed his raincoat and took off, flapping his arms and sprinting down the center aisle and out of the courtroom doors, with the bailiff in hot pursuit. The gallery burst into spontaneous applause at his performance, and Anne decided on the spot to pay him a bonus.
“Think of it as a demonstration, Your Honor. It proves my point that if a naked man enters the courtroom, all else stops—”
“Was that man
“No, he works for Strippergram. He sings, too, but the case didn’t call for it.”
“I object, Your Honor!” Matt was yelling, but Judge Hoffmeier waved him into his seat, never taking his stern gaze from Anne.
“Ms. Murphy, are you telling me you paid a
“Who else would get naked for money?”
“Ms. Murphy! I could cite you for contempt for this sort of thing! Send you to jail! My courtroom is not a peep show!”
“I’m sorry, Your Honor, but I couldn’t think of any other way to show you. I mean, look around.” Anne gestured at the gallery, now in complete disarray. People were half-standing and half-seated, laughing and talking among themselves, unable to get back in order. “See? The naked man is gone, but everybody was completely distracted by him. I was making a valid legal argument when he dropped his coat, but everybody stopped listening, including you.”
Judge Hoffmeier bristled, but Anne went on.
“With all due respect, Your Honor, what just happened proves my point. If a naked man is on the jury’s mind, they won’t be able to focus on Mr. Martin, and he’s the one on trial. They’ll go into that jury room to deliberate, and a naked man is all they’ll talk about. That’s exactly what Federal Rule 403 was designed to prevent.”
Judge Hoffmeier went speechless, and Matt simmered. The courtroom fell suddenly silent as everyone gazed, stunned, at Anne. She remained uncharacteristically mute, wondering if she could post bail with a Visa card. After a minute, Judge Hoffmeier sighed, nudged his glasses needlessly into place, and met Anne’s eye.
“Ms. Murphy, I will not sanction this sort of foolishness in my courtroom. I maintain a relaxed atmosphere here, but you have evidently gotten the wrong message.” The judge squared his shoulders in the voluminous robes. “I am therefore citing you for contempt, to the tune of $500. Thank your lucky stars I’m not locking you up for the weekend. But as I said, the Fourth of July is my favorite national holiday, and every American should celebrate our individual freedoms. Even Americans as absurdly free as
“Thank you, Your Honor,” Anne said. As for the $500, she’d have to take it out of her personal savings, which would leave $17.45. She couldn’t very well charge the client for keeping the lawyer out of jail. She was pretty sure it was supposed to be the other way around.
“And, Ms. Murphy, you’re on notice.” Judge Hoffmeier wagged his finger. “I will not tolerate another such
