If I had to wager a guess, I’d say Pillsbury Winthrop Shaw Pittman partner Mark Krotoski is still smarting over the benchslap he got from Judge Cristina D. Silva of the District of Nevada on September 3rd. Because Silva absolutely *slammed* Krotoski over behavior exhibited over the course of an antitrust trial. And Judge Silva thinks she knows the root of the “unprofessional” conduct: entitlement.
The straw that broke the camel’s back was a representation made repeatedly by Krotoski that an expert witness was traveling on a particular date. But when the witness returned to court, the witness told the judge she was running errands on the date in question.
“Stated otherwise,” Silva wrote, “Krotoski’s representation that the witness was ‘traveling’ was a lie.”
And that’s not the only bone the judge has to pick with Krotoski. Judge Silva said the lie was “exacerbated by other unprofessional trial conduct from Krotoski, such as delaying the proceedings by lackadaisically retrieving witnesses and not providing direct answers to direct questions in the days leading up to his misrepresentation.”
In responding to the incident, Krotoski wrote he was “saddened and shocked” by the order to show cause. He argued, “[t]he record and facts do not demonstrate an effort ‘to mislead the court’… and do not support a finding of subjective bad faith.” And chalked it up to “a poor choice of words in communicating with the government concerning the unavailability of the expert.”
But Judge Silva sees that as a veneer hastily slapped on the problematic tactics at play. “Krotoski writes that he has profound respect for the judicial system and the rule of law and details his prior professional experiences, which includes two clerkships, a decorated career with the Department of Justice, and other public service roles,” Silva said.
And then the judge goes for the metaphorical kill shot.
“The court has spent considerable time contemplating why someone with as much experience as detailed in Krotoski’s 23-page response would engage in the unprofessionalism this court has observed,” Silva wrote. “Indeed, the details of his experience are wholly at odds with his actions during the trial, which candidly saddened and shocked the court, as well. Unfortunately, the court has come to the only logical explanation for his conduct: entitlement.”
Harsh.
Silva continues, “As defined by Merriam-Webster, entitlement is the belief that ‘[he] is deserving of or entitled to certain privileges.’ The record here reveals Mr. Krotoski believed he was entitled to misrepresent [the expert witness]’s availability in an email to the government, writing she was ‘traveling’ when she was not. And he apparently felt entitled to maintain that representation in open court.” The Merriam-Webster definition is a classic rhetorical flourish that really brings down the hammer. It’s pretty clear the judge is well and truly tired of the bullshit she’d been getting during the course of this case.
You can read Judge Silva’s full admonition of Krotoski below.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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