GRETA VAN SUSTEREN, ANCHOR (voice-over): Do lawyers need the manners police? That's today on BURDEN OF PROOF.

ANNOUNCER (voice-over): This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

ROGER COSSACK, ANCHOR: Hello, and welcome to BURDEN OF PROOF.

Emily Post says we all should observe good manners, but does that apply to lawyers inside the courtroom who are fighting to defend their clients?

VAN SUSTEREN: Speaking of fighting in the courtroom, here in Los Angeles, they are fighting in the courtroom about fighting in the courtroom.

Joining us is Daniel Hustwit. He's a defense lawyer who is on trial for challenging a bailiff to a fight and using profanity in the courtroom. And in Detroit, Geoffrey Fieger, who may be a bit of a hothead himself.

COSSACK: And in New York, cool, calm, collected Raoul Felder. But joining us here in Washington, in the back row from the left, Chuck Chesny (ph), Courtney Lake (ph), and Rachel Graybow (ph), and in the front row, Angelique Dorsey, Keith Watters, who is the former president of the Washington Bar Association and the National Bar Association.

But, first, let's go to Daniel Hustler. Daniel, you were in the courtroom. You were defending your client. Somehow, this escalated into you now being on trial for challenging the D.A. and a bailiff to a fist fight. What happened?

DANIEL HUSTWIT, DEFENSE ATTORNEY, FACING CRIMINAL CHARGES FOR RUDENESS: Well, Roger, it's kind of a long story, but what actually

happened was my client was being sentenced on a third strike case. He only got three years. He didn't get 25 to life. The bailiff, who was the arresting officer, and the prosecutor wanted him to get 25 to life. They came over disappointed that the man only got three years in state prison for forging an application on a driver's license, and that triggered me into a tirade. I began insulting them. I called them various names, the F word. I called them the A word. I asked them if they weren't happy they didn't get their Fing pound of flesh, and then the bailiff got in my face. I said, "Deputy, if you want to take off your gun and your badge, let's step outside and settle this like men."

VAN SUSTEREN: Dan, was the judge present when you made these remarks to the bailiff and the prosecutor?

HUSTWIT: No, Greta. He was not. The judge was off the bench.

VAN SUSTEREN: What was the reaction of the prosecutor as you were making these remarks to him?

HUSTWIT: Well, I have to say everybody in court was shocked. It's pretty rare where an attorney goes into a tirade like that, but there was nothing I could do about it. They insulted humanity basically. They insulted a human life, and I had to stand up for my client.

COSSACK: All right, Daniel -- and I -- I think I mistakenly called you Hustler. Your name is Daniel Hustwit, but let me just ask you this. Don't they have a right -- whether we think it's a good right -- idea or not, but don't they have the right to perhaps be a little disappointed in what they think was the wrong outcome of a case without perhaps you going off on them?

HUSTWIT: Well, Roger, let me ask you this. If somebody insults your mother, do you have the right to say something to them? It's similar for a defense attorney. They insulted my client and his family in front of his family. They have whatever right they want, but I also have the right to speak my mind. The First Amendment gives me that right.

VAN SUSTEREN: And, you know, Roger, I think, big deal. I mean, it's not as though a prosecutor and a bailiff haven't previously been insulted or vice versa, a defense lawyer...

COSSACK: Well, Greta, you...

VAN SUSTEREN: ... insulted.

COSSACK: ... don't have an argument -- all I can tell you about, Greta, is this shows you what a peaceful, calm state we have in my home state of California. We must have no crime there if we have time to try this fellow for a disturbing-the-peace charge.

VAN SUSTEREN: That's right. But let's go to Geoffrey Fieger in Detroit. Geoffrey, I described you at the beginning of the show as perhaps a hothead. Where do you come -- where -- what is your view of what's happened to Dan here out in California?

GEOFFREY FIEGER, TRIAL ATTORNEY: They must be rolling in money out there to waste their money upon the exercise of First-Amendment rights, Greta. I can't believe that anybody from the prosecutor's office is getting away with that.

VAN SUSTEREN: Well, let me ask you this, Geoff. Have you ever said anything like that to any opponent?

FIEGER: Well, yeah, outside of the courtroom and as long as the judge isn't there to hold you in contempt, of course. I've had attorneys dragged out of my office by the scruff of their neck. Look it. We're adversaries. We're warriors. We're in an adversary system, and we're advocates for our clients. Sometimes, we get hot. That's to be expected, and anybody who doesn't understand that doesn't do what we do, and the problem is the judges, by and large, who are going on the bench have never practiced the type of law that we practice, and they don't understand what we do, and if they had some understanding, they'd be a little more understanding of the problems that exist.

COSSACK: OK, Raoul.

VAN SUSTEREN: You know, Roger, one thing I think -- you know, being out here in California -- I always tease you about the State of California, but I really think is much ado about nothing. Do you know how much money has been spent on...

COSSACK: Well, Greta...

VAN SUSTEREN: ... this trial?

COSSACK: ... this is one time you're not going to get an argument out of me. The notion that this fellow is on trial in a municipal court for disturbing the peace for what he did, I think, is ridiculous, and I think the taxpayers of California should stand up and say, "Just a minute. If we've got this much money, perhaps they should lower the taxes."

But let's now go to Raoul Felder in New York. Raoul, I introduced you as calm, cool, collected Raoul Felder in New York. You practice in perhaps the most emotion-filled area there is, the area of spousal relations, divorce, you know, where people are really angry. What -- how do you keep your cool? Do you -- have you ever had a situation in the courtroom?

RAOUL FELDER, TRIAL ATTORNEY: Oh, many times. If -- as a matter of fact, Roger, to deal with you squarely, I won't give a whit for a lawyer that doesn't have some fire in his belly and doesn't believe in what he's doing and doesn't have passion, and you do lose your temper. There come times you can't suffer fools. Last week, I was in court, the other lawyer was simply lying, and I raised my voice, and that happens, and it should happen. That's the way the system works. Talk about cussing. If I were a taxpayer in the State of California, I would be cussing right now. They're taking my money and throwing it down the drain. This is ridiculous.

VAN SUSTEREN: You know, Raoul, it's like -- when a client comes in to see a lawyer, a client doesn't say, "Gee, how are your manners? Are you polite?" What a client wants is someone who's willing to fight for his or her rights and willing to stand up to an opponent and willing to stand up for a judge, and yet, you know, here we see is -- that the legal profession is beginning to think that this isn't OK.

FELDER: Hey, you know, Greta, you're absolutely right. In the history of the world, there never was a client to complain about a lawyer saying, "You're not polite enough. That's the problem." Worse yet they're trying to legislate politeness in this state and, I understand, three other states. They're trying to pass a code that makes you be polite.

COSSACK: All right. Let's go to Keith Watters. Keith, now you -- you're the -- you've been the former head of the National Bar Association, you know, a prestigious organization in which you've had to -- you know, be -- run as the head of all these lawyers, sort of lay down the law to them. What about what Daniel's done? I mean, how do you feel in terms of -- should lawyers be in trouble like this? What about when they express their passion?

KEITH WATTERS, TRIAL ATTORNEY: I don't think Dan has a chargeable offense, and I wish him all the luck in the world. I think we need to separate what we're talking about here. It's one thing to lose the -- your temper. It's another thing to have deliberate conduct that violates the rules of professional responsibility and the voluntary codes of civility. If I purposely sexually harass you and start making inappropriate comments to you just to get you off base deliberately, I'm not losing my temper. I'll forgive you for losing your temper, but, on the other hand, if your conduct is deliberate and purposeful to violate the rules of civility --- just like if I came over to your house, I have certain manners I have to obey, lawyers have to be held to that same code of conduct to treat each other civilly.

VAN SUSTEREN: Dan, how much time could you get if you were convicted of the offense?

HUSTWIT: Well, Greta, I don't look forward to getting convicted, I hope I don't, but under the penal code, I face a maximum of 90 days in the L.A. County Jail.

VAN SUSTEREN: All right. Well, we're going to need to take a break. Coming up, if lawyers are starting to go to jail for bad manners, we may have a bigger prison overcrowding problem than we originally thought. More on civility in the courtroom after this.

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LEGAL BRIEF -- On this date in 1934, a federal appeals court struck down the government's attempt to ban the controversial James Joyce novel "Ulysses."

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VAN SUSTEREN: Welcome back.

Good manners should be natural, but in New York State, New York thinks they should do something about the lawyers. They should legislate in order to have good manners.

Raoul, what is going on in your state about lawyers and their manners?

FELDER: Well, I mean, I think our manners are as good as anybody else, but they're trying to pass a code which is demeaning to lawyers, insulting. I mean, if you want to start with somebody, why not doctors who don't call you back when you're waiting for lab reports or why not taxi drivers or waiters or -- it is crazy, Greta. It doesn't make any sense. Furthermore, you know, one person's boorishness may be rudeness to another. If you're snide, the other guy may say, "Oh, he was rude." Indifference may be rudeness.

And now let me ask something else. If you have a lying, scheming witness on the stand who you know is not telling the truth, why can't you have a scathing, slashing -- a sarcastic cross-examination? I don't know. I kind of thought we had an adversarial system.

Let me suggest something else to you. Listen, you know, there's sort of subtext. We know -- one of the dirty, little secrets of our profession is there are really two kinds of lawyers. There are fancy lawyers who sit in skyscrapers with gray hair and deal with corporate money, and there are other lawyers who are defending people's rights and maybe prosecuting the bad guys and so forth. You know, Dan unfortunately -- or maybe fortunately -- has an earring and a -- wears a ponytail, and maybe if he was one of these gray-haired lawyers who sit on all these boards, he wouldn't be there.

And the same thing with this politeness. There's a kind of sexist undertone about it. You know, you're saying, I think, that one male lawyer to another doesn't care about a little cussing, but they're saying maybe -- I think what they're saying is, you know, there's a lot of women lawyers, and it's not nice to talk about -- talk like that. My -- what I found in court is women lawyers are very tough, and they don't need any protection.

COSSACK: All right, Raoul. I've got to jump in right now because you -- you've opened a door that I have to walk through. I've got to run...

VAN SUSTEREN: I knew I was going to...

COSSACK: ... through this one, Greta. Get ready. Joining us is Judge Bruce Mencher who's on the D.C. Superior Court and who I think has had the opportunity to see a Greta Van Susteren, when she wasn't making me crazy here in this BURDEN OF PROOF, practicing law. Now we've talked about women lawyers. We've talked about a little sexism. OK, Judge. I'm putting you on the spot. Was she feisty? Would -- did you have to slap her down a little bit? What happened?

JUDGE BRUCE MENCHER, D.C. SUPERIOR COURT: Let me say to you that Greta was a very able and competent lawyer. At times, she may have been feisty, but she was never uncivil, and there's a great distinction between being perhaps feisty, being aggressive, getting a good slashing cross-examination where the circumstances warrant. This is not a tea party we're in, it's not a minuet, and lawyers should be aggressive. Lawyers should fight for their clients, but that's to be distinguished from civility, as least in my judgment.

COSSACK: When does the line get crossed, Judge? Can you give me an example?

MENCHER: Well, I think the line would get crossed -- you're talking about in a courtroom or out of the courtroom? Let's...

COSSACK: In a courtroom. I'm -- I'm -- well, let's just say...

MENCHER: Well, let's take -- if I may give you the classic example, it's more outside of the courtroom where you see the incivility than in the courtroom, we've found. When you're in the courtroom, the judge is there, and the judge, in most instances, can get a handle on it and control the situation. It's when the matters are taking place outside the courtroom. For example, at a deposition. You go into a deposition -- I heard this gentleman on the -- just a moment ago -- I don't know him, but he was talking about men and women. There was a case I recall where the man walks in smoking a great, big cigar, blows it all in the woman's face, and then starts screaming at her during the deposition, but there's no need for this type of conduct. The judge isn't there. So what do they do?

VAN SUSTEREN: You know...

MENCHER: They have to stop the deposition, go to the courthouse, get a ruling from the court. There comes -- I -- there comes a time when incivility crosses the lines of incivility and then becomes a violation of the canons of professional responsibility. We don't want it to get to the point you have to violate the canons of responsibility.

VAN SUSTEREN: Judge, isn't it also a problem sometimes that when you have lawyer who is so meek and so worried about being liked by everybody in the courtroom that some individual's rights could also be at jeopardy because an individual has a right to an effective lawyer?

MENCHER: Absolutely, Greta, but I don't think one dictates the other. There are meek lawyers, the same way as there are aggressive people. That lawyer was going to be meek long before the civility standards, which I might say are aspirational in most instances, hopefully.

COSSACK: All right. Let's go to -- let -- can I just run to Geoff Fieger for a second? Now, Geoffrey, you know, they can pass all the laws in the world to try and calm you down. I somehow think that Greta and I would be putting up bail for you about every week on these.

FIEGER: Right. You can't micromanage these things. The things the judge just said are obvious. They're impertinent, they're absolutely rude, and human beings shouldn't react that way to one another, but that has nothing to do with effectively being an advocate and trying a case and being a tough advocate. The problem is that these rules will be used inevitably to shut down...

COSSACK: Geoff, let me ask...

FIEGER: ... acceptable advocacy.

COSSACK: Geoff, now the judge is disagreeing with you. He's disagreeing with you time after time in front of the jury, making your case look a little week. What do you do, Geoff?

FIEGER: I stand up, and I say, Judge, you want to come down here and try the case? I'm trying this case. If you want to be a lawyer, you step off the bench.

VAN SUSTEREN: You know, I -- but wait a second, Geoff. That's stepping... COSSACK: Judge, how many days in jail does Geoff do?

MENCHER: I think it's -- I don't think he's going to do that. I don't think he's going to do that. I think on television in posturing, he's going to say that to me.

FIEGER: No, I'm going to go up to the judge.

MENCHER: Could I finish?

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