Lawyers Who Resort to Anti-Semitism as a Litigation Tactic: The Insidious Lesson of Otis Carroll

Earlier this year, I had my first encounter with an attorney who openly resorted to anti-Semitism as a litigation tactic. This occurred in a divorce proceeding that is now pending in a county in upstate New York. The attorney in question submitted court papers that were laden with epithets that had a decidedly anti-Semitic flavor in an attempt to prejudice my client (who is Jewish) in the eyes of the court.

Among other slurs, the attorney referred to my client as a “Svengali”. For those who may not be familiar with this particular slur, it is historically considered one of the most deeply and viscerally anti-Semitic caricatures. Svengali, a fictional character in George du Maurier‘s 1895 novel Trilby, is a character that embodies the essence of anti-Semitism. Svengali is evil, all-powerful and manipulative. In the book, Svengali is vividly portrayed in terms that would have immediately conveyed to the book’s late-19th century readership his Jewishness:

He was very shabby and dirty… His thick, heavy, languid, lusterless black hair fell down behind his ears on to his shoulders, in that musician-like way that is so offensive to the normal Englishman. He had bold, brilliant black eyes, with long heavy lids, a thin, sallow face, and a beard of burnt-up black, which grew almost from under his eyelids; and over it his moustache, a shade lighter, fell in two long spiral twists. He went by the name of Svengali, and spoke fluent French with a German accent and humorous German twists and idiom, and his voice was very thin and mean and harsh, and often broke into a disagreeable falsetto.

Not surprisingly, in the upstate case that I am handling, the attorney’s use of the slur “Svengali” is accompanied by other, age-old stereotypical language. For example, the attorney describes my client as “diabolical”, all-powerful, and having “dark plans”.

I am hopeful that the court in upstate New York will reject my adversary’s resort to anti-Semitism as a despicable, unethical, and deeply offensive perversion of the legal process. There is good reason to believe that such repulsive tactics have been relegated to the dustbin of history.

In 2011, the anti-Semitism of Texas attorney Otis W. Carroll, Jr. backfired when his client, Cisco, was subjected to a retrial – which cost it an extra $60,000,000 in damages. Carroll engaged in tactics that were strikingly similar to the anti-Semitic slurs that I am presently confronting upstate. Apparently, Otis Carroll went to great lengths in his effort to denigrate the plaintiff (an Israeli company) in the eyes of an East Texas jury. Although Otis Carroll was apparently smart enough not to use a blatantly anti-Semitic slur such as “Svengali”, his anti-Semitic overtones were blatant enough that the federal district court judge ordered a partial retrial. Carroll asked one witness whether his cousin was a “bottom-feeder who swims around on the bottom buying people’s houses that they got kicked out of for next to nothing.”

As noted above, Otis Carroll’s client (Cisco) paid a heavy price for Carroll’s insidious tactics. I am hopeful that in the case I am handling upstate, my adversary will learn the same lesson as Otis Carroll.

The punishment meted out to Otis Carroll and his client indicate that the United States has progressed considerably during the past few decades. With the possible exceptions of East Texas and the Fox News Channel, it is no longer fashionable to engage in open displays of intolerance. Yet, the struggle against bigotry is ongoing. We must be vigilant. In the past, code words (and even worse) were an acceptable tactic for denigrating Jews and African Americans. Today, we must fight against the same type of linguistic ostracism that is used against Hispanic residents of our country. Even the smallest step in fighting bigotry is a significant victory.

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