by Richard W. Millar, Jr.

I have always been fascinated by how some companies create a name that becomes generic for their product. An obvious example, particularly to those of us who grew up with carbon paper and mimeographing, is Xerox. It now stands for any copier, no matter the manufacturer, and is both a noun and a verb. “Where is the Xerox machine?” “Will you please Xerox this for me?”

Another example, longer standing and perhaps more pertinent, is Kleenex. I don’t know who made up the name, which by itself is not particularly interesting or descriptive, but it has survived and now stands for virtually any tissue.

It also made it into a federal opinion.

The case in question has a long and tortuous history, much of which occurred in Texas, a state with a rich lore of colorful people and language.

One David Clapper, who apparently is quite wealthy and hails from Michigan, sued American Realty Investors, Inc. in Texas essentially claiming that the defendants had engaged in fraudulent transfers to avoid paying a judgment previously rendered in Mr. Clapper’s favor.

The trial did not go well for him—the jury found for the defendants on all counts. He appealed, citing a number of grounds but primarily contending that defense counsel had made numerous improper and prejudicial statements, particularly in closing argument.

The United States Court of Appeals for the Fifth Circuit recently issued an opinion that did not discuss many of his claims for error because it found the statements of the defense lawyers to be the bell ringer, if you will: “We agree that the defendants’ counsels’ closing argument irreparably prejudiced the fairness of the trial . . . .”

After two-and-a-half pages citing several cases about when closing arguments may warrant reversal, the court said: “Here, the Defendants were represented at trial by Stephen A. Khoury and C. Gregory Shamoun. Together, they employed nearly every category of what we have previously held to be improper closing argument.”

At least they were thorough, but I digress.

The two “launched a barrage of personal attacks” against Mr. Clapper’s lawyer, starting with my personal favorite when Mr. Shamoun “threw a box of tissues at [Mr. Clapper’s lawyer] stating ‘I know y’all have a potentiality of crying, y’all might need Kleenex during my [closing].’”

Mr. Shamoun also said that if Mr. Clapper’s lawyer “had accused him of perjury in the street, rather than the courtroom, he would have ‘kicked his butt.’” He then declared, “I don’t care if I was half blind and half lame, I would have found the strength to whoop his a—” and said that if the lawyer were his child, he would have spanked him. He described Mr. Clapper’s lawyer’s acts as “low-class,” “classless,” and “ruthless,” and said that he was an “embarrassment for the profession.”

Mr. Khoury, the other defense lawyer, “for his part,” piled on by claiming that one of Mr. Clapper’s experts was a “paid prostitute from Michigan,” called Mr. Clapper’s lawyer dishonest, and noted, “where I come from, we don’t listen to another germ that comes out of that person’s mouth.”

Mr. Clapper himself was also a target of their vituperation. Both of them mentioned his Michigan past, “suggesting that people from Michigan have lower moral standards.” They called him, and I swear I am not making this up, “a financial pimple” who was a “billionaire with a seventy-foot yacht . . .” who was “going after the estate [of a defendant] who had recently died and left behind a widow and six children.”

In claiming that Mr. Clapper was not credible, Mr. Shamoun said: “He can cry, cry like he did in the first trial, he can cry like he did here. I’m not going to tell you I don’t like him because it don’t matter what I do or what I don’t. But he is not a credible person.”

It was, in other words, open season.

After resolving the case, the appellate court reminded “all practitioners in our court that zealous advocacy must not be obtained at the expense of incivility,” and that “Rambo and kamikaze lawyers lead themselves and their clients to zealous extinction.”

That, of course, leads me to Millar’s Warning #5:
Never throw your Kleenex at your opposing counsel; you may need it later.

Richard W. Millar, Jr. is tired and retired. He can be reached at dickmillar9@gmail.com.