Today's Quiz:

"The Screaming Itches" would be:

(a) unwise to bring up on a first date

(b) a good name for a band

(c) a bad excuse for failing to appear in court

(d) all of the above

Of course the answer is (d), so I will admit that as a quiz that kind of sucked. But perhaps it will be of some use in the continuing effort here to educate people on What Not to Do.

In this case—decided by the Sixth Circuit in 1985 but just made known to me (thanks, Rob)—there are actually three lessons.

First, while it sometimes cannot be avoided, it is not a great idea to schedule overlapping or immediately consecutive trials. Stuff happens and the first one may well go longer than expected.

Second, if you have been ordered to appear for trial in Courtroom One on a particular day, and explain that you cannot do so because another judge previously ordered you to appear in Courtroom Two that day, it would be best if that explanation is actually true. And ideally, it would not turn out that the explanation is false because, in fact, the Courtroom Two judge excused you from appearing that day because you told him you had to appear in Courtroom One.

This may well have worked when you were shuttling back and forth between Mom and Dad and lying to them about who said you could go to the movies. The stakes are higher in federal court.

Third, if you have been required to appear before one of these judges to explain your "apparent misrepresentation to two federal judges that [you] were in the other's courtroom when in fact [you] were in neither," you should not ignore the request for an explanation and then, when pressed, state that you failed to appear because you "had the screaming itches in the crotch…. I wasn't here because I would have been scratching my testicles constantly if I had been here."

Emphasis added.

I don't care if it's true, you need another explanation, or at least you need to phrase it differently.

It is not too surprising that the district court held the attorney in contempt and sent a copy of its opinion off to the state bar. It also ordered him to pay the jury fees for that day and (more significantly) the opposing counsel's fees and hotel bill for that day. On appeal, the Sixth Circuit affirmed.

There was a dissent, but that was based mainly on the dissenter's belief that the sanction was for criminal contempt, not civil contempt. It's often not clear which is at issue, but if it's criminal contempt then the accused is entitled to all the usual rights, which were not provided here. So while that judge concurred that the attorney's conduct was an "embarrassment" that should be referred to the bar, he thought the fine itself had to be reversed. He was outvoted, though.

As it turns out, there is no record that the state bar imposed any discipline for the misrepresentation or the "screaming itches" comment, which should not be taken to mean it approved (could be it thought the disputed fine was enough). Should you actually be experiencing the screaming itches (not a band called The Screaming Itches, which again could be pretty cool), a simple presentation of medical records is advised.