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Lawyer Behaving Badly, Judges Behaving Without Common Sense
Two months ago, I posted about a 7th Circuit decision, Redwood v. Dobson, where the court censured two attorneys for their conduct during a deposition that the court characterized as a "grudge match." The plaintiffs attorney was sanctioned for repeatedly asking invasive and intrusive questions. At the same time, the defendant's attorney was also sanctioned for instructing his client not to answer; according to the court, the attorney should have left the deposition and applied for a protective order from the court. In this opinion piece, Above It All: a deposition can be an ugly war. Sometimes judges have to get down in the trenches, The American Lawyer (May 2007), Steven Lubet wonders whether the court got it right and whether its "nuclear option" of shutting down a deposition makes sense as a practical matter.
During the deposition, Danner, the plaintiffs lawyer, began asking the co-defendant intrusive and irrelevant questions, such as whether he had engaged in homosexual conduct. Eventually, Webber, the deponent's attorney, instructed him not to answer. On review, the 7th Circuit called Danner's conduct shameful and censured him for conduct unbecoming to a member of the bar. But the court censured Webber, as well, because Rule 30(b) of the Federal Rules of Civil Procedure only allows lawyers to instruct deponents not to answer in order to preserve a priviledge or avoid violation of a protective order. Here, Webber's objections regarding the offensiveness of the questions did not fall within either of these categories. Thus, the court explained that rather than instruct the deponent not to answer, Webber should have "called off the deposition and applied for a protective order" from the trial court.
Lubet takes issue with the censure against Webber. He writes:
Imagine the unfair choice that Webber would have faced under Judge Easterbrook's approach when Danner asked his first over-the-top question: "Mr. Gerstein, have you ever engaged in homosexual conduct?" Webber would have had to direct his client to submit to an invasion of privacy, or else suspend the deposition right then and there. But suspending a deposition is hardly without cost. Webber then would have had to prepare a motion, obtain a court date, appear before the trial judge, and present his argument. Although his objection would no doubt have been sustained, there was no guarantee that he would have been awarded adequate costs. He would then have had to go back to the deposition with no assurance that Danner's obnoxious questioning wouldn't resume, in which case Webber would have had to repeat the entire process.
Lubet also gets to the heart of the problem:
Working lawyers have to craft pragmatic solutions, usually under extreme time pressure and often on tight budgets. Rules are rules, to be sure, but sometimes there ought to be a little play in the joints, recognizing that the spirit of a rule may be more important than its harsh enforcement. Any lawyer who has ever defended a deposition against an overbearing lout would sympathize with Webber's dilemma, and would understand why running to court wasn't obviously the remedy of first resort.
Unfortunately, as Lubet describes, the members who constituted the panel in this case -- Frank Easterbrook, Diane Wood and Ilana Rovner -- collectively lack extensive practice experience, "much less in a small-town, small-case practice such as Webber's." And as a result, the solution they crafted could wind up making depositions even more contentious than they are now.
Posted by Carolyn Elefant on May 2, 2007 at 05:19 PM | Permalink
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