At Legal Underground, I did a post about a shouting match that erupted last Friday at the New Jersey Vioxx trial. The shouters were the trial judge, Carol Higbee, and one of Merck's lawyers, Diane Sullivan. In an article describing the fireworks, a lawyer gave a possible explaination for what had occurred:
Samuel L. Davis, a lawyer for several other Vioxx plaintiffs, said he did not believe Sullivan's outburst was spontaneous.
"When a very seasoned, experienced lawyer gets in the judge's face, that (is) calculated to draw the judge into a fight. Then that fight serves as the basis for a recusal. Or a mistrial," Davis said. "This judge did not bite."
I think the more likely explanation for Sullivan's outburst is sleep-deprivation after weeks of trial. Meanwhile, I wonder whether any "seasoned, experienced lawyer" would actually recommend the tactic of drawing a judge into a fight in the hopes of a recusal or mistrial? While I have seen a judge get so irritated at a participant in a trial that he recused himself, it wasn't planned as a tactic. It also didn't help the outcome. Judges talk, you know.
Here's what I want to know: Is the recommended tactic really for the seasoned and experienced? Or is it merely for the foolish?