The first really big defense case I handled and tried without any supervision or help involved two stevadores who had been exposed to Methyl Bromide while removing a "reefer" from an ocean going container with garlic in it. The stevadores were definitely exposed to the Methyl Bromide and it can and does kill. It works by suffocating the oxygen from the air and no breathing thing can live. The stevadores were outside, so there was plenty of oxygen and they fortunately, only experienced mild symptoms of nausea, headaches and fatique.
At trial, their attorney put on an expert from California who had presented a report where the gas the stevadores were exposed to was grossly exaggerated. He admitted to same and in my cross-examination, I said, "Well, Dr. Whatever, if you start with the wrong number, By God, you are sure to get the wrong answer."
Judge Schneider then called the attorneys up to the bench and told me that "By God" was essentially a slang or even curse word in East Texas. I am from East Texas and was surrounded by Baptists, but I had never heard that.
So I get back to cross-examination of this expert and I realize the whole case could depend on his testimony. The little insurance company I was defending the case through would not be in very good shape if the plaintiff stevadores recovered the millions being sought by the plaintiffs, so I felt particularly pressured to win. At the end of the cross-examination of this expert, in the heat of the moment, I said,
"By God if you start with the wrong number, you will never get the right answer, will you Dr. Whatever?" The judge banged his gavel - something I had never seen before and not since in an civil case - and said "Mark the record" to the court reporter.
I then said, "You mean to tell me you came all the way from California at $350 an hour to tell us the wrong answer?" The judge instructed the witness not to answer the question. He cleared the court room, even made my senior partners leave the room who were just observing and then he held me in contempt of court for disobeying his order. I had simply forgotten and in the heat of the moment, I repeated "By God". He sentenced me to three days in jail and a $500 fine. He was furious and it showed.
The plaintiff lawyer wanted to clarify that he could re-direct his witness and said, "Your Honor..." when the gavel came down again and Judge Schneider said, "I hold you in contempt too! $500 fine."
Naturally, the plaintiff attorney was more than a little confused about the contempt and ultimately never put his witness back on the stand and redirected him. In fact, the doctor's reading glasses remained on the bar throughout the rest of the trial.
I was speechless, mad and confused. In law school, there are a lot of odd courses with obscure information but what to do when held in contempt of court was not one of them. So I had no idea if I was going to have to go to jail that evening after court or what. I was preoccupied with what this meant for me. My own father, no stranger to being held in contempt of court as an attorney, had never told me of being held in contempt in the middle of a trial. My partners had no idea either but did suggest I could appeal it, etc. and that I probably - emphasize probably - would not have to go to jail that evening.
Later that afternoon, we were getting a video tape set up and I was wearing my displeasure openly when the judge said, "Apologies go a long with me, Mister." So before I could apologize, the plaintiff lawyer leaped to the bench and apologized and I followed.
The jury poured out the plaintiffs and I saved the insurance company millions. I went back to see the judge and apologize in person and he accepted the apology and said I won because of my tough cross-examination of the expert.
Since that day, I have never said "By God" again while speaking anywhere much less in court. The funny thing is that I had really never used it before that trial. Some things are just meant to be.