February 18, 2010
The "Eisenberg Effect"
The Wisconsin Supreme Court has revoked the license of an attorney who had previously been disciplined four times. The attorney had represented a husband in criminal charges arising from allegations of domestic violence brought by a wife. the husband was acquitted of the charges. The next day, the attorney filed a civil suit against the wife claiming that she had perjured herself in the criminal case. The suit was found to be instituted for an improper purpose. Additional, the attorney made claims about the post-verdict behavior of the jurors in the criminal case that were found to be false. The court noted:
The referee commented extensively on what he termed Attorney Eisenberg's lack of candor throughout the disciplinary proceeding. The referee found "Mr. Eisenberg's testimony under oath at various times to be deliberately evasive; inconsistent and contradictory; and false, incredible and impossible to believe." The referee was particularly troubled by Attorney Eisenberg's claim that one or more jurors had contacted him the morning following the acquittal verdict in the criminal case:
But the most preposterous testimony by Mr. Eisenberg relates to his account about a juror or two jurors contacting him on the morning following the acquittal verdict and claiming that the [W.D.] criminal jury stormed/marched into Judge Koschnick's chambers demanding that [M.D.] be charged with perjury. According to Attorney Wilcox, that afternoon Mr. Eisenberg told the family court commissioner at a scheduling conference in the  divorce action that "a juror" had called him that morning and when told about the new lawsuit he was filing, the juror purportedly responded "good, she deserves it." The following month, when Mr. Eisenberg spoke to a news reporter for the Daily Jefferson County Union, the news reporter testified that Mr. Eisenberg stated "a juror" called him. Three months later in a court argument before Judge Hue, Mr. Eisenberg stated: " . . . The jury came back with a not guilty, and the jury marched into . . . chambers and suggested to the judge that M.D. should be criminally charged. I found out about it from either the jury foreman or one of the jurors calling me and telling me they had gone in and asked why this woman wasn't charged with a criminal slander or perjury or something. . . . "
The next reference to this alleged jury reaction appears in Mr. Eisenberg's testimony before Judge Gram on December 23, 2003, during the special proceedings. Initially, Mr. Eisenberg testified about a phone call from a woman juror, but during cross-examination, he recalled for the first time that two jurors called him on the morning following the acquittal complaining about [M.D.]'s alleged perjury and wanting Mr. Eisenberg to do something about it.
At this disciplinary hearing, Mr. Eisenberg totally abandoned the single juror contact version of this event. He testified that the morning after the acquittal when he was in his office, he "got two phone calls, one from a woman, who did not want to give me her name, and I believe there was a man who called. . . . I was extremely impressed with the fact that I got calls from jurors. That doesn't happen all the time. . . . " This referee is skeptical of the change in Mr. Eisenberg's recollection from a phone contact from a single juror to two phone calls from two jurors.
Next, if two separate jurors took the trouble to locate and speak by phone with Mr. Eisenberg about the jury marching/storming into Judge Koschnick's chambers, allegedly complaining about M.D. committing perjury and eliciting Mr. Eisenberg's help, then why did both jurors refuse to give Mr. Eisenberg their names? . . . This referee is skeptical about why two jurors go to the trouble of contacting Mr. Eisenberg in the first instance and then both refuse to identify themselves.
However, if these two jurors contacted Mr. Eisenberg to report this extraordinary event, but refused to reveal their names, is it not reasonable to expect that Mr. Eisenberg would contact Judge Koschnick's court personnel to verify the accuracy of this account? This is particularly true when you consider that Mr. Eisenberg had just spent the previous two days in trial before that court and on the afternoon of the alleged two juror calls, he was at the Jefferson County Courthouse to attend a pre-trial conference in the  divorce proceedings. However, Mr. Eisenberg made no such contact. And if this juror contact occurred, is it not reasonable to expect an experienced criminal lawyer to report this to the Jefferson County District Attorney rather than contacting the editor of the local newspaper?
However, any questions about this entire incident are quickly resolved when one considers the testimony of Judge Koschnick himself. Judge Koschnick testified that as is his custom, he went to the jury room after the verdict in the [W.D.] criminal action to inquire about their general jury experience. He said one juror expressed concern to him that the acquittal verdict not result in any type of prosecution of [M.D.], which the juror did not want to see happen. Judge Koschnick was unequivocal that there were no jurors storming or marching into his chambers——something that neither he nor his bailiff would ever allow. There was no claim by any juror that [M.D.] had lied nor any request or demand for any criminal action against [M.D.]. In fact, Judge Koschnick testified that seven years later he still recalls he "was outraged" when he read Mr. Eisenberg's version of the event as reported in the local paper. Judge Koschnick's testimony on this entire subject was very clear and very credible.
Therefore, either you have a completely fabricated story by two separate but unidentified jurors, which Mr. Eisenberg recklessly repeats to a family court commissioner, a newspaper reporter and a judge or you have a completely fabricated story by Mr. Eisenberg. There is no doubt in this referee's mind that the fabrication was the product of Mr. Eisenberg, under oath, in both the [W.D.] special proceeding and this disciplinary proceeding.
Counsel defending the bar discipline matter argued that his client had been singled out for sanction where others would not be charged, which he called the "Eisenberg Effect." The response:
The OLR suggests that if there is in fact an "Eisenberg Effect," it is Attorney Eisenberg's abusive conduct and disrespect for other parties, other lawyers, and the legal system which leads to sanctions.
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