While the substantive issues of the dispute between insurance companies in a bad-faith case were being appealed to Pennsylvania's Supreme Court, concerns over the conduct of one of the attorneys in the case were back down at the trial level.
A Pennsylvania Superior Court ruling in December in ACE American Insurance Co. v. Underwriters at Lloyds and Cos. said the Philadelphia Common Pleas Court should not have removed the pro hac vice admission of Atlanta attorney J. Randolph Evans of McKenna Long & Aldridge without giving him warning that his conduct was crossing the line.
Philadelphia Common Pleas Court Judge Howland W. Abramson accused Evans of racially pandering to the predominantly black jury that ultimately found against his client.
"A review of Evans' closing remarks -- as well as his conduct throughout the trial -- demonstrates improper behavior which is not acceptable in this commonwealth," Abramson wrote in an earlier opinion. "As evidenced by the record, such conduct included racial pandering, misstatements of the law, circumvention of the rulings of the court, attempts to unfairly portray the defendants' actions as racially motivated, improper attempts to personalize the case and other unprofessional conduct."
Evans claimed his revocation was without warning and had he known he was running afoul of local rules, he would have changed his conduct.
His admission was revoked after the trial, but Evans -- the ethics counselor and former outside counsel to the past two GOP speakers of the U.S. House of Representatives -- wanted to clear his name and appealed the revocation.
While the Superior Court didn't question the trial court's observations of Evans during the March 2006 trial, it said he should have been given the opportunity for a hearing to explain his conduct before the revocation took place.
So a hearing is what Evans got -- before all three judges in Philadelphia's Commerce Court Program, including Abramson.
In a two-page opinion signed by Abramson, Judge Mark I. Bernstein and Senior Judge Albert W. Sheppard, the court said Evans has "committed to modifying his behavior henceforth."
The court pulled out one specific exchange from the rather contentious hearing to include in its opinion. In the exchange, the court asked Evans whether, if in the future he thought a reasonable jury would interpret his closing arguments as racial pandering, he would speak similarly to other juries.
"No," Evans said. "I will be much more careful about making sure that I don't even go near the line. I'm -- I'm -- I'm, listen, I -- I -- I've got the scar here."
Given the outcome at the hearing, the court said it didn't see any reason to take any further action in the matter beyond the opinion of the Superior Court.
"Thus, Mr. Evans now knows where the line is and has stated that he has no intention of behaving similarly in any future case in this commonwealth," the Philadelphia court's opinion said.
There was a lot of back and forth during a recorded discussion before the hearing between the three-judge panel and Evans' attorney, James C. Schwartzman of Stevens & Lee, over why Evans wanted to apologize if he felt he did nothing wrong.
After a few attempts to break into the conversation, Sheppard pointed out in Evans' defense that people say they are sorry all the time, even if they don't see how they erred but feel their behavior offended someone else.
Abramson pushed Schwartzman on whether Evans was introducing extrajudicial information by introducing to the jury during his opening his son who was sitting in the courtroom.
"Listen, in my opinion, here is your out," Abramson said after some back and forth with Schwartzman. "If he concedes he conveyed extrajudicial information to the jury and does not want to concede to racial pandering, fine. If he doesn't want to concede that, the hunt's on."
After more than 30 minutes of discussion about whether a hearing should even take place, the court proceeded with the hearing and Schwartzman put Larry Fox of Drinker Biddle & Reath and Clark Hodgson Jr. of Stradley Ronon Stevens & Young on the stand as expert witnesses on ethics and trial advocacy.
"It was a long and arduous piece of collateral litigation, but I am very happy, as is my client, that it ended as successfully as it did," Schwartzman said in an interview.
Robert B. Bodzin of Kleinbard Bell & Brecker and C. Lawrence Holmes of Dilworth Paxson were opposing counsel to Evans in the underlying case. They said at the beginning of the hearing that they didn't intend to testify in what they viewed as a professional conduct matter but changed their minds after Evans' testimony.
Evans had said that what the court described as extrajudicial commentary to the jury was just an attempt to make him seem more human to the jury. His experts said trial advocacy courses teach attorneys to appeal to the jury and humanize the process. He said making a reference to the last year Michael Jordan won a championship to help the jury remember a date was not racial pandering but a fact-neutral trick to have the year stick in their minds.
Much of Evans' arguments at trial, according to the hearing, revolved around how Evans' client faced adversity and prevailed only to be the fall guy for a large corporate company.
Bodzin pointed out in the hearing that Abramson said as part of his jury charge in the underlying case that it was not a civil rights case.
"Well, where did Judge Abramson get that from?" he said. "Where Judge Abramson got it from is the same place that I got it from, from anybody objectively sitting in that courtroom who knew that Mr. Evans was talking about race and nothing else.
"And I feel duty bound to advise the court that those are the facts and circumstances that I observed and I think the record ought to so reflect."
Schwartzman objected to Bodzin's testimony as irrelevant, but no clear ruling was given in the transcript.
At the conclusion of the hearing, Bernstein gave Schwartzman two weeks to prepare a letter brief on Bernstein's earlier questions about whether Evans paid his city wage tax while working in Philadelphia during the trial. The hearing had taken place June 5 and the court's opinion was docketed Aug. 8.
