July 8th, 2013

Judge Rips Doc for “Huge Lie”; Perjury Prosecution Possible; Victims May Number in Thousands

Supreme Court, Queens County

Reporting by Samson Freundlich and Eric Turkewitz

Last week a state trial judge unsealed a record showing falsified testimony by a New York orthopedist who conducts up to 1,000 medical-legal exams each year. Queens Supreme Court Justice Duane Hart unsealed the April 12, 2013 testimony of Dr. Michael J. Katz as he pondered a referral to the District Attorney for perjury over “a huge lie” concerning so-called “Independent Medical Exams.”

Dr. Katz, an orthopedist frequently hired by insurance companies to defend personal injury cases — who has testified that he may make over a million dollars a year just from his medical-legal practice — had testified in the recent case that he likely spent 10-20 minutes on his examination of the plaintiff. A surreptitiously made video, however, revealed that he spent a mere one minute and 56 seconds on the exam and could not have made all the findings he testified about within that short time.

The underlying labor law case concerns a severe ankle fracture that resulted in a fusion of the joint as well as a shoulder injury that required surgery, suffered when Manuel Bermejo fell from a Bakers Scaffold. The court indicated that there was potential for a verdict of “several million dollars” based on the injuries.

The transcripts in Bermejo v Amsterdam that we obtained over the July 4^th break detail Justice Hart’s concerns not merely with the fact that Dr. Katz was dishonest regarding the estimated length of the actual exam, but that the substance of what he testified to could not be true. Justice Hart said, “He testified as to findings that he obviously could not have had in a minute and 56 seconds.”

These medical exams are often critical to the defense of personal injury cases, and are also used by insurance companies to “evaluate” whether they should continue to pay No-Fault or Workers Compensation benefits. The reason the exams are often problematic is that the insurance carriers have a vested interest in limiting payments and only retaining doctors that give them favorable reports, and there is no stenographer to record what transpires. Quickie exams that serve only to deny benefits to the injured are a constant problem.

But this case had actual evidence in the form of a secretly made video recording. It shows Dr. Katz examining Mr. Bermejo as plaintiff’s trial counsel, who recorded it, and a paralegal-translator looked on. This was the second exam that Dr. Katz had done of Mr. Bermjo, as he had undergone shoulder surgery after the first examination.

Plaintiff’s counsel was moved to record this second exam, according to court transcripts, because he believed that Dr. Katz had been dishonest in his report of what transpired at the first one. The initial exam, Dr. Katz claimed, lated 45 minutes and he also claimed that plaintiff’s counsel impeded it. (The paralegal that was present took the stand and sharply disputed both points.) When the time came for the second exam, plaintiff’s counsel secretly recorded it to protect himself from any possible complaints or accusations from the doctor.

This secret recording was not exchanged during the litigation, as plaintiff’s counsel said there was no requirement to do so since Dr. Katz was a non-party, and the only potential use of the video was if Dr. Katz perjured himself. When Dr. Katz offered testimony at trial that was completely inconsistent with the actual events, the evidence was submitted to the court. As a result of this video substantively contradicting the trial testimony, and concerned about a breach of the discovery rules and orders by the failure to disclose, Justice Hart declared a mistrial after 2-3 weeks of trial.

In a remarkable hearing before Justice Hart after the false testimony had been given, Dr. Katz’s criminal defense attorney stated that the perjury was the fault of the court because the court had demanded the doctor tell the truth in answering the question about how long such exams usually take. Justice Hart characterized this as “the dumbest thing I ever heard” either inside the courtroom or out.

At a hearing July 1st to apportion responsibility for the cause of the mistrial, Justice Hart initially sanctioned the defense firms $10,000.00 each, noting that “It is the carriers and Dr. Katz that I would love to sanction, but I can’t do that” as sanctions are restricted by the court rules to parties and their attorneys. Unhappy with that restriction, Justice Hart said, “You can probably hear my teeth grinding.”

The court had also initially sanctioned plaintiff’s trial counsel $250 for not exchanging the video, which sanction was also withdrawn and plaintiff’s counsel absolved of fault for causing the mistrial. The judge derided Dr. Katz on his assertion that his first exam lasted 45 minutes, and said “it would have been reasonable” to want such a recording. Justice Hart, who has served since 1981 as attorney, law secretary or judge, said regarding the alleged 45-minute claim by Dr. Katz, “What universe does he live in? If I ever see a doctor do a 45-minute IME it will be the first time.”

All the attorney sanctions were vacated later in the hearing.

Justice Hart, in finding that it was the doctor’s false testimony that caused the mistrial, stated that while he had seen abuse of the system before, “This is clearly the most blatant example of a doctor getting up there and just not telling the truth.” He also suggested that plaintiff’s counsel who had spent $40,000 on trying the case so far, should sue Dr. Katz for the expenses and legal fees caused by the mistrial.

Feeling handcuffed by the relatively few options available to him for a non-party witness that lies and causes a mistrial, and recognizing that there are others doing the same, Justice Hart asked the attorneys:

How do I stop carriers from putting people like Dr. Katz on the stand and causing the state to spend thousands and thousands of dollars trying a case and putting a lying witness on the stand? How do people like me, people in this building, people that wear black robes send a message to them that they cannot condone perjury?

Despite all the admonitions thus far from Justice Hart the matter remains open as Dr. Michael Katz is still conducting medical-legal examinations and has refused to retire from these activities. Justice Hart had offered him the option of bowing out of the business and he declined. Thereafter the court ordered a full transcript, intending to send the matter to the Administrative Judge for a civil contempt hearing and send the matter to the District Attorney with a recommendation that they explore a perjury prosecution.

Regarding the fact that Dr. Katz was still doing these medical-legal exams on July 1^st when this hearing took place, and recognizing that he had been caught lying back on April 12th, Justice Hart said:

It is like a wound that is festering. Every time he does another IME. When is it going to stop? He is making 7 figures a year doing IME’s. Then he comes to my part and lies.

Judge Hart did not mince words when he said that, aside from the effect of any potential criminal issues, that Dr. Katz’s career was essentially finished when it comes to his substantial medical-legal practice: “Dr. Katz’ future doing IME’s because he lied in this one will probably be finished.”

“It is that the tape shows that he didn’t do the tests that he spent a considerable period of time talking about that he did. That is the perjury. Yes, didn’t do the tests. It is not just me saying it. It is not just the plaintiff saying it. The defendants are saying it too. Does your client really think if the insurance industry or some of the insurance companies that hired him before when they find out that he lied, do you really think they are going near him?”

The impending denouement of Dr. Michael Katz is all the more stunning since it comes fresh on the heels of his fellow New York orthopedist Dr. Robert Israel being sanctioned for his conduct in medical-legal exams. Dr. Israel had been doing up to 1,500 per year, but has now been barred from doing them for three years.

Together, Drs. Katz and Israel have no doubt sent New York’s insurance carriers frantically scrambling, as the two of them were responsible for thousands of insurance exams each year, the results of which are now all thrown into question. The scope and scale of insurance fraud being perpetrated — by the insurance companies themselves — could have resulted in hundreds of millions of dollars in payments being withheld. It remains unclear just how many New Yorkers have been fraudulently denied benefits based on quickie exams that were set up to deny benefits and minimize jury verdicts.

The scope of such an investigation of the insurance industry, it seems, could only be done by Attorney General Eric Schneiderman.

Last week’s hearing regarding Dr. Katz was adjourned until this afternoon (July 8th) at 2:00 pm. It is unclear whether Dr. Katz will voluntarily agree to halt his lucrative medical-examination business — though this now seems like a moot point now since the record regarding his false testimony has now been unsealed.

It’s worth adding that this is not the first time Dr. Katz was caught by a court with less than candid conduct that caused a mistrial. A year earlier while testifying in Brooklyn, Dr. Katz went outside the confines of his report to suddenly testify about a relationship between tinnitus and aspirin. Justice Francois Rivera, after making an inquiry, said that he was “satisfied that this witness is less than forthcoming” about his decision to suddenly stray from his report to a new subject, and was concerned with Dr. Katz “materially misleading the court.”

The legal fallout may result in any or all of the following:

Civil contempt of court;
Criminal perjury prosecution by the District Attorney;
Civil suits for causing this mistrial by any/all of the attorneys involved;
Civil suits based on fraud by past litigants saying they were also victimized by Dr. Katz;
Action against his license from the Department of Health-Bureau of Professional Medical Conduct;
Racketeering suits for conspiring with insurance companies to commit insurance fraud; and
Investigation by the Attorney General into the issue of insurance fraud perpetuated by the insurance industry.

These predictions regarding a wide-ranging insurance fraud scandal are backed up by Justice Hart, who repeatedly referenced the insurance carriers as being part of the problem:

I can blame the attorneys and the carrier who hired him to do an IME on this case because they should have known what this guy was doing. They should have known. And again the man is making literally millions of dollars doing IME’s. Now, he gets caught lying. There is no other way to put it. He lied. There is no other way to make it nice. He said the IME took between 10 to 20 minutes. It took a minute and 56 seconds.

The transcript of the proceedings is here: July 1 Transcript

From what we’re watching unfold, this may be the tip of the iceberg. Stay tuned…

Part 2: Dr. Michael Katz’s License and Liberty Placed in Jeopardy Due to Lying Over Medical-Legal Exam — 7/9/13

Part 3: So, Just How Short Were Dr. Katz’s Medical-Legal Exams? (Dozens of his other exams are investigated) — 7/10/13

Part 4: Premature Evaluations — the Evidence on Quickie Medical-Legal Exams — 7/16/13

Part 5: Quickie Medical Exams: What Next? (7/23/13)

Part 6: To Tell the Truth: Which Doctor’s Signature is the Real One? (7/30/13)

Part 7: Doctor Testifies That Six Different Signatures Are All His (8/5/13)

July 2nd, 2013

July 2nd: A Day to Celebrate Independence

Each year I have used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown. It was signed two days later, and the date of signing is memorialized on our Declaration of Independence.

John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but do take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…

IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

June 28th, 2013

ABA Drops The Ball On Attorney Marketing

This post is about some lousy advice given by the ABA Journal regarding legal marketing, some of which may actually be an ethical violation in New York.

I have something to add to the skewering of the ABAJournal article done by Ken @ Popehat, but go read that first and then return: Plumbing The Depths of Legal Marketing: What Does the ABA Think You Should Do To Get Clients?

Welcome back. Before going on, let me agree with Ken and say that not all of the advice is bad. As per the ABA advice on how to market, for instance, this is good:

11.) Don’t adopt a false marketing persona. Be yourself, and figure out the best way to present yourself in a way you find appealing.

OK, I like that, and it fits with ways that I market.

But this is one thing that Ken discussed about that article where he missed a critical point, and it’s important because it actually may be an ethical violation depending on your jurisdiction:

13.) Providing they label it attorney advertising, personal injury lawyers may send ad letters to accident victims.

Blech. Lets leave out, for a moment, that this is degrading to the profession as Ken notes, and makes all lawyers look like Sunday morning whores, even if we don’t conduct ourselves in such horrid fashion. But in New York, this might actually be an ethical violation as it could violate our 30-day anti-solictitation rule. See, for example, NY Lawyer Solicits Snowbound Subway Victims (Does He Violate Ethics Rules?)

This is Rule 4.5:

No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

So part of the ABA advice could actually lead to an ethical violation depending on when it is sent. Shouldn’t that article have been peer-reviewed before publication?

But there is another downside to doing this, even if it might fall on the correct side of many/most codes of professional conduct.

You see, some lawyers have blogs, and I don’t mean the kind that are designed for search engines to read, but the kind that humans like to read. And some of those same lawyer-bloggers like to call out others for scummy conduct, even if it might appear to be on the correct side of the code of professional responsibility.

You shouldn’t assume that, merely because something might be legal, someone else might not take offense and decide to call you a scumbag for having done it. I could use a more polite word than scumbag, but the critic writing about you might not, so you might as well deal with that fact now and consider the consequences.

And that lawyer-blogger might do it with your name in the very Google-friendly headline and url, like this.

You know why I do it? When people in my niche go to pick juries, we don’t like it when jurors look down their noses at us and our clients during jury selection. When jurors dislike us, the scales of justice are imbalanced before we even start the trial.

So if you do something scummy that tarnishes the reputations of lawyers, I have no problem flaying you alive.

The ABA article says has this pearl of wisdom:

33.) Never criticize a company by name in a blog post. You never know when that company might be in a position to hire you.

And guess what? Some of us don’t give a damn about that, and we aren’t interested in our blogs being bland bits of pablum. See, for example, the heading on this post that you are now reading, as well as a few others:

Are FindLaw’s “Blogs” Tainting Its Clients, Commentators and the Profession of Law?

Martindale-Hubbell: Now Sending Comment Spam? (How Does That Rate?)

Shpoonkle – A Lousy Idea for Lawyers and Clients

FuneralHomes.Com Digs Down Deep For Personal Injury Lawyers

Yodle and Attorney Advertising

Dropping comment spam, for example, might be legal. But look at the list of bloggers in this post who are more than happy to call you out on it.

It’s worth noting, by the way, that writing posts like those — the kind that the ABAJournal says not to write that criticize companies — are part of what put me in the ABAJournal Blawg 100 for the last five years and into its Hall of Fame. Ironic, no?

Marketeers beware. You’ve been warned. Yet again.

June 27th, 2013

Sold! “Tranquility Base” Goes Hollywood (Big Time)

How many different ways are there to say “Wow!”?

You know how I’ve written about my screenwriter brother a few times?

Like the time Justice Antonin Scalia gave him advice on a script? Like the time he took top prize in a screenwriting competition?

Well, breaking into Hollywood may be tough, but — you sittin’ down? — yesterday he sold his sci-fi space script, Tranquility Base, which one writer describes as “Lord of the Flies in Space.” It is now owned by:

Sir Ridley Scott and 20th Century Fox.

You read that right. Sir. Ridley. Scott. As in Aliens, Thelma and Louise, Black Hawk Down, and Gladiator. And the legendary Apple Mcintosh commercial 1984, and a boatload of other things.

Yeah, that Sir Ridley Scott, whose name you can now write in the same sentence as my brother Dan Turkewitz, which I just did right now thank you very much.

Am I bragging about my kid brother? You’re damn right I am.

But not just because he wrote a great story, and not just because he has a desk full of other scripts ready to go, but because of his dogged perseverance in the face of frustration and adversity.

He knew no one in Hollywood when he dropped architecture and started writing in 2000. Not a soul. Want to know how tough it is to break into that tight circle when you don’t have an intro from someone else? Virtually impossible.

He sent out thousands of individualized pitch letters over the years — to directors, producers, actors, agents, lawyers and possibly a few doorman, just trying to get his stuff read.

The long, long road to Hollywood looked something like this:

It started with simple pitch letters. Wave after wave, which didn’t seem to get him very far. The first script was a bank caper involving an architect designing an office tower with a bank as the main tenant, and who is blackmailed into designing a heist into the blueprints. After over a thousand letters sent to 250 companies, he got it optioned, but never made. That was the closest he came until yesterday.

For several scripts he created DVD boxes for the prospective movie, with whatever actor, producer or director he was pitching listed in the credits, and if actors, their pictures on the box.

For one script he created tee shirts. The script, a comedy, involved squirrels, so there was a cartoon squirrel on the shirt, and each shirt had a unique web address that would pitch to whoever was getting the shirt.

For one script with a female lead, he sent a pitch letter along with flowers to a few film actresses who were appearing on Broadway. Figuring out how to get past the wall of agents, managers, and assistants that surround actors is an extraordinary challenge, but he figured if someone was appearing on Broadway, he’d know exactly where she could be found.

It worked for the very first actress, as he got a script to Helen Hunt. Unfortunately that was the only time the flower trick worked. The one success with Hunt led to a wave of letters to TV studios. He found a website that listed talk show guests two weeks in advance, and sent letters to actors at the Letterman, Leno, and Oprah studios, among others, a few days in advance. None of those paid off.

For Tranquility Base, the script that finally broke through, there’s been quite a few twists and turns. The marketing began before the script was written. When it was just a 15 page treatment he reached out to the NASA community to see if he could get someone who’s actually flown in space to help out.

He was lucky enough to connect with Captain William Readdy, who flew three missions on the Space Shuttle and spent over 672 hours in space. Captain Readdy’s feedback helped steer the story in the right direction, and being able to say an actual astronaut helped as a story consultant helped get people’s attention.

My brother built a website, hired an artist to draw some concept art and, of course, made DVD boxes. After the script was finished and won a screenplay competition, he managed to get an active duty astronaut who can’t be named who lived in the Space Station to review the script and help him make it even better.

And then, finally, he entered the Launch Pad Competition, a first year contest run by industry website The Tracking Board. It had an impressive list of people who would be judging, if you made it to the Finals.

A couple weeks ago, Hollywood mucky-muck Brooklyn Weaver saw the script at Launch Pad, read it, loved it, pitched it, and got the deal done.

Rest assured, my brother didn’t get where he is these past 24 hours by sitting around eating Cheetos on the couch.

And so, to all those others out there banging on doors, just trying to pry one open and jam the foot in, let the lesson ring out loud and clear: It can be done. All you need are the two things that my brother has:

1. Talent

2. Dogged perseverance

‘Scuse me while I kvell.

June 25th, 2013

Justice Alito Acting Like Rookie Lawyer

Samuel Alito at 2010 State of the Union. Photo by Charles Dharapak/AP, via The Atlantic

It’s one of those things that lawyers learn early on: keep a professional demeanor in court. You will get your chance to argue. Making faces while your opponent argues exposes a childish temperament.

But someone forgot to teach that to United States Supreme Court Justice Samuel Alito, or he failed to learn the lesson. According to this piece in the Washington Post today by Dana Milbank, Alito has been acting like a middle schooler with his facial expressions when others dare to disagree with him.

I won’t steal all of Milbank’s words, but here are a select few as he describes Alito’s facial expressions when a judge 17 years his senior dares to have a different opinion than he does:

When Justice Ruth Bader Ginsburg read her dissent from the bench, Alito visibly mocked his colleague.

Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.

If this happened as Milbank describes, there is frankly no excuse for it. I’ve seen judges admonish counsel who did this during oral arguments.

But it wasn’t the only time Milbank saw this:

Days earlier, I watched as he demonstrated his disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court. Kagan, the newest justice, prefaced her reading of an opinion in a low-profile case by joking that it was “possibly not” the case the audience had come to hear. The audience responded with laughter, a few justices smiled — and Alito, seated at Kagan’s right elbow, glowered.

And the country as a whole watched this during the 2010 State of the Union when President Obama criticized the court for allowing unfettered corporate spending in political campaigns with its Citizens United decision, with Alito shaking his heads and mouthing a protest. The other justices kept their poker faces intact.

The eye-rolling behavior witnessed yesterday by Milbank, by the way, was also noted by Garrett Epps writing for The Atlantic. He noted about the inexcusable rudeness:

I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito’s display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg. Because Alito’s mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.

Once upon a time Alito was a federal prosecutor. Did he roll his eyes and make faces to the jury back then when defense counsel spoke? Or was he able to refrain because, as a prosecutor, he could pick the cases the wanted — ones that, perhaps, had overwhelming evidence in his favor — and was never seriously challenged by an equal?

If I were a judge and saw that type of disrespectful conduct from counsel, I would think in terms of admonishment. Repeat conduct could be subject to sanctions.

Notwithstanding this, I’d love to meet him. With all his facial tells, perhaps I can persuade him to come by for a poker game.