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Prominent Miami lawyers Ira and Marvin Kurzban are trying to keep a victory for their client in a lawsuit against American Eagle Airlines from turning into a defeat for themselves. Indeed, the brothers’ courtroom behavior may cost them more than $1 million. The problem? The two are accused of engaging in disrespectful courtroom antics, including refusing to shake the opposing attorney’s hand, being verbally abusive to one of the opposing counsels and misleading a witness on the stand. Why wouldn’t Ira Kurzban shake the hand of opposing counsel Terence Connor, offered in congratulations after the trial? Was he being uncivil? No, says Kurzban’s attorney, G. Richard Strafer. “The ‘hand-shaking’ incident … only occurred after Mr. Connor threw a pen at Ira Kurzban and called him names in the presence of his client and witnesses.” That’s not how Connor tells it. In the course of deposing a Kurzban client, says Connor, managing partner of Morgan Lewis & Bockius in Miami, “I reached for an exhibit and flipped my pen down on the table. We were in a room with two tables pulled together, probably 36 to 40 inches wide, and the pen slid across the table and landed on a chair next to Mr. Kurzban, probably three feet away.” The 14-day trial, in which the Kurzban brothers, partners in their own Miami law firm, sued American Eagle Airlines on behalf of former employee Anthony Lee, ended more than six months ago. Lee claimed he’d been fired because he was black. A federal jury in Miami rejected that claim but nailed the airline for subjecting Lee to a racially hostile environment. The jury awarded $950,000 in compensation and punitive damages. But the presiding federal judge says that the Kurzbans’ conduct itself created a hostile environment — in the courtroom. U.S. District Judge Donald M. Middlebrooks has slashed their allowable attorney fees to $312,000 — from a requested $1.6 million — and has asked the Florida Bar and Peer Review Committee for the Southern District of Florida to review his findings of misconduct and consider sanctions. “I frankly considered denying fees altogether,” the judge wrote in his order explaining his rationale, “but while I have reviewed many of the depositions, I did not observe everything that happened during the pretrial phase of the case.” The judge, reached Thursday, declined to comment for this story, particularly since his order is being appealed, as is the case itself. This is not the kind of news the Kurzbans tend to generate. Marvin is an acclaimed civil trial lawyer who has won many multimillion-dollar verdicts. Ira, a recipient of the Tobias Simon Pro Bono Service Award from the chief justice of the Florida Supreme Court, is experienced in employment law and known internationally for expertise on immigration matters. When the Elian Gonzalez dispute arose, news media around the country — including the Miami Daily Business Review — scurried to solicit his opinions. But the American Eagle case brought out the worst in them, judging from Middlebrooks’ 25-page order on attorney fees. He cut Ira’s $300 per hour fee request to $150 per hour for pretrial work and to zero for his trial work. “Marvin Kurzban’s rate for this action is $0,” wrote the judge. The order said that “overzealousness on both sides” lengthened the case, but the judge took no action against Connor. Connor, speaking to the Miami Daily Business Review, would admit only to being “zealous.” But he said the Kurzbans’ behavior went “well beyond lack of decorum.” At one point, Connor said, he asked a witness where he was born and raised. He says Ira Kurzban objected on the grounds that it was a compound question. Ira Kurzban referred questions to his and his brother’s attorney, Strafer. In a letter to the Miami Daily Business Review, Strafer called the court order “erroneous in numerous respects.” But Strafer declined to rebut it point-by-point, reserving that for the appeal. He did argue, however, that virtually all of the conduct the order addressed occurred, “if at all,” outside the courtroom or outside the jury’s presence. “The order thus appears to set a new and troubling standard by suggesting that courts may act as referees and sanction attorneys for conduct (such as refusing to shake hands with opposing counsel) deemed ‘uncivil.’” Strafer also alleged that the order ignored more serious misconduct by Connor, such as asking a black witness during the trial whether the witness knew what his skin color was. “The witness broke down in tears on the witness stand,” Strafer said. “Such behavior has no place in a federal civil rights trial where discrimination is at issue.” Connor says that’s not when the witness broke down in tears. And the question’s context, he says, was that witness Oswald Russell, in years of employment and in a previous grievance about being denied a promotion, had never cited race as a reason, even though he knew his contract protected him from racial discrimination. “You do know what your skin color is, correct?” Connor asked, according to a transcript of the deposition. Ira Kurzban objected that the question was argumentative and offensive, but the judge overruled the objection. As for where the conduct in question took place, the judge, in his order, recalled it differently from the Kurzbans. “Disturbing behavior by both Marvin Kurzban and Ira Kurzban occurred repeatedly during the trial,” the order states. The judge found their behavior met a standard of “flagrant or egregious” misconduct, warranting a fee reduction. “Most significantly, much of the misconduct in this matter occurred before the court,” he added. “When confronted about their conduct, they would deny that which I had just observed and then lash out in a personal attack,” the judge wrote. “For instance, when I overruled an objection made by Ira Kurzban, Marvin Kurzban laughed. Other examples of their conduct include Marvin Kurzban tossing a pen; Ira Kurzban exclaiming, ‘This is outrageous’; the rolling of eyes; exasperated looks at the ceiling; and flailing of arms.” The judge’s order lashes at Marvin Kurzban for loudly making such comments as “Let’s kick some ass,” while court was in session and the jury was waiting to be called into the courtroom. The comment “was suited more to a locker room than a courtroom of the United States, and the conduct of plaintiff’s counsel that followed disrupted the adversary system and interfered with the resolution of a civil dispute,” the judge wrote. There also was testimony in an evidentiary hearing about the matter that each day, as court began, Marvin would say, “Let the pounding begin.” In front of Connor’s client, Marvin asked, “How are you going to feel when I take all of your client’s money?” According to the judge’s order, Marvin, confronted in the hearing about an allegation that he’d called one of the defense lawyers “a second-rate loser,” responded that he had called the opponent a loser but not a second-rate loser because, “I don’t rate losers.” This isn’t Marvin Kurzban’s first run-in with allegations of misconduct, the judge noted. Immediately before the American Eagle trial, in fact, the Florida Bar, in response to a complaint, fined Marvin Kurzban and ordered him to attend an ethics class. Details of that case were not available at press time. The Kurzbans, judge Middlebrooks concluded, were “unrepentant, attacking opposing counsel and accepting no responsibility for their own actions. They argued that the perceived misconduct was only a matter of style and the exercise of First Amendment rights.” At one point in the trial, during a cross-examination concerning how much time one witness had spent on various shifts, Marvin Kurzban held a file and told the witness, “I have your personnel file.” He then asked questions about how many times the witness had worked between 1992 and 1994. After an objection and out of the jury’s presence, the judge asked to see the file. According to the judge’s order, Kurzban admitted that the file he’d held up wasn’t in fact the witness’ personnel file. In response to a scolding by the judge, though, Kurzban told the judge that there was nothing inappropriate in what he’d done. “Neither was I implying something that wasn’t true, nor was I making a misrepresentation,” the attorney said, according to the order. “The question was about how many times he worked, Your Honor. The question wasn’t: ‘In your personnel file it says something.’” Marvin Kurzban told the judge that he did have the personnel file, either in a box at the courthouse or back at the office. He was asked to produce it and said he would the following day. “The file was never produced,” the judge wrote in his order. One young lawyer on Connor’s defense team testified at the evidentiary hearing that her encounters with Ira Kurzban contributed to her decision to leave her litigation practice. “This lawyer testified that during telephone conversations with Ira Kurzban, she was hung up on, told that she had only been assigned to work on the case because she was African American, and wrongly accused of misrepresentations,” says the order. The judge found her testimony “powerful and credible” and added: “It also reflects the corrosive impact this type of unprofessional behavior can have upon the bar itself.”

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