August 9, 2014

Remedying Abusive Conduct at Depositions

Posted in Commercial Litigation, Corporate Litigation, Discovery, Employment Law by Gene Killian |

Many of us who are involved in the meatgrinder (a/k/a the American litigation system) are at least passingly familiar with the decision in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1996), in which the late Judge Gawthrop took lawyers to task for abusive conduct in depositions. Many clients, even some sophisticated commercial clients, want their litigation attorneys to act as “warriors,” and many lawyers are only too happy to oblige. These clients and lawyers view the process as a battle to be won, rather than, as the late Justice Frankfurter once said, “the pursuit of practical ends.”  And that worldview leads to a panoply of obstructionist tactics. Endless objections at depositions and trial, “boxcar” document requests, unnecessary motion practice, and, all too often, a complete lack of civility. (I once read a book by a famous business executive, in which he said that he had ordered his lawyers never to give anyone on the other side an extension or accommodation. His view was that lawyers were part of a vast conspiracy to drag things out forever, simply to generate fees. All I can say is, in any litigation, it’s inevitable that you’ll need an accommodation or extension of your own. What goes around comes around.)

In a recent (sad and ugly) products liability case in federal court in Iowa involving brain damage allegedly caused by baby formula, Judge Mark Bennett launched a Gawthrop-like mini-crusade against what he considered to be improper big-firm litigation tactics.  (When I discuss particular judges with whom I’m not familiar, I always check The Robing Room website, which contains reviews from around the country prepared by lawyers who have litigated before each judge.  As you can see by clicking here, the reviews on Judge Bennett are somewhat mixed, ranging from “an egotistical clown” to “hard-working and an amazingly quick study.” I think the lawyers who win tend to give better reviews.)

The target of Judge Bennett’s unhappiness was a litigator from a non-Iowa firm.  (I will call this lawyer the “Alien Litigator.”) Judge Bennett, in fact, took pains to note:  “There is great pride in being an Iowa lawyer, and describing someone as an Iowa lawyer almost always connotes that lawyer’s high commitment to civility and professionalism. Of course, there are stinkers in the Iowa bar, but they are few and far between.” (From these statements, I think it’s easy to see why you need good local counsel in unfamiliar jurisdictions, and why local counsel should sit at counsel table with lead counsel whenever possible.)

Judge Bennett, sua sponte, issued an order to show cause why sanctions should not be assessed against the Alien Litigator for her excessive use of “form” objections at depositions, frequent unjustified objections at trial, the coaching of witnesses, and “ubiquitous interruptions and attempts to clarify questions posed by opposing counsel.” These sorts of things are often admired and even insisted upon both by in-house lawyers and lay clients, so it might be wise to take note of what Judge Bennett said.

On the topic of form objections, the Court noted that, in the two deposition transcripts that he had read, the Alien Litigator objected to form 115 times, meaning that such objections could be found on 50% of the pages of the deposition transcripts.  The judge felt that such objections were interposed simply to coach the witness, which was improper under the federal rules. As an example:

Q.  Would it be fair to say that in your career, work with human milk fortifier has been a significant part of your job?

DEFENSE COUNSEL:  Object to the form of the question. “Significant,” it’s vague and ambiguous. You can answer it.

A.  Yeah, I can’t really say it’s been a significant part. It’s been a part of my job, but “significant” is rather difficult because I have a wide range of things that I do there.

Judge Bennett wrote:  “Lawyers may not comment on questions in any way that might affect the witness’s answer: ‘The Federal Rules of Evidence contain no provision allowing lawyers to interrupt the trial testimony of a witness to make a statement. Such behavior should likewise be prohibited at depositions, since it tends to obstruct the taking of the witness’s testimony. It should go without saying that lawyers are strictly prohibited from making any comments, either on or off the record, which might suggest or limit a witness's answer to an unobjectionable question.’”  (Citation omitted.)

The Court also noted: “Lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question. The witness – not the lawyer – gets to decide whether he or she understands a particular question: ‘Only the witness knows whether she understands a question, and the witness has a duty to request clarification if needed. This duty is traditionally explained to the witness by the questioner before the deposition. If defending counsel feels that an answer evidences a failure to understand a question, this may be remedied on cross-examination.’” (Emphasis added.)

The Court held that bad faith is not necessary for the imposition of sanctions, and here, crafted an interesting one:  He ordered the offending lawyer to prepare a training video for all litigation lawyers at her firm, on proper and ethical conduct at depositions.

If you’re involved in litigation in any way, reading Judge Bennett’s decision will be both informative and entertaining. You can access it by clicking here

-Gene Killian