How not to conduct a deposition:
From Andrew Sullivan, a YouTube video showing a deposition that got out of hand. There's plenty of blame to go around, but from the looks of these excerpts the deposition-taker and at least one of his allies should have been sanctioned.
Any readers know what actually happened in the (likely) motions and cross-motions afterwards?
UPDATE: It turns out the lawyer taking the deposition is none other than the famed Texas trial lawyer Joe Jamail. Still no word on what, if anything, happened afterwards.
What typically happens in the real world is that somebody calls the judge, who reluctantly orders the parties to come down and finish the deposition at the courthouse, where everyone generally behaves.
Discovery disputes are like the Arab-Israeli conflict in that it is difficult for both sides to avoid condemnation regardless of the actual circumstances. Judges don't want to be bothered with juvenile disagreements, even when only one side is being juvenile, which is a shame because some lawyers really go beyond the pale in this regard.
You may say "how not to conduct a deposition" but Jamail is one of the richest trial lawyers in the country (if not the richest). I think he was the first billionaire trial lawyer. Obviously he's doing something right...
p.s. the UT library isn't named after Jamail (though there is a legal research center or something like that at the library named after him, as well as a pavilion, and the field at the football stadium).
Yes, the witness could justify walking out based on the abuse--even if he may have slightly provoked it.
To answer Dale's question, I can't imagine what the motion would seek? As far as I can tell, all questions were answered. There was no overt coaching. Perhaps there were some spurious objections (I don't know the relationship between the lawyer and the witness), but so what? The objections didn't impede progress--the idiot who objected to the objections, and the examining attorney were the obstacles.
As for the language and the blustering? So what? This witness certainly wasn't intimidated, and that's all judges usually care about.
One of the worst I saw personally involved objections over bathroom breaks. We had to discuss what was a reasonable number and time for each. The witness was elderly and quite nice. The lawyers, except me of course, were horrible.
--G
I'm still looking for someone who knows what actually happened.
We have local LA County court rules, and the California Code of Civil Procedure, which proscribe this kind of conduct. They violated the rules, no doubt. Yes, in theory, the practice is sanctionable. In reality, thats another story.
Unless there is a true obstuction of the discovery process, and valid questions are not being answered, then the judges don't want to be bogged down. Judges loath discovery disputes, and this doesn't even rise to that. Rather, this is a couple snotty lawyers behaving badly. Do judges like that? No. But what they dislike more are whiny spineless lawyers tying up valuable courtoom time with this kind of childish dispute.
Some female judges, particularly those who never litigated, might sanction the attorneys. However, more savvy judges would be more pissed for having this show up on their law and motion calendar. Many judges would be equally disposed to sanctioning both sides, or neither.
I don't know what really happened in this case. But I have seen enough to be confident that this never made it to court. I would bet nothing at all happened.
Two links of interest would be,
More on Joe Jamail
and
How Joe Jamail conducts a deposition
Ugh, here we see exactly why so many people are absolutely disgusted by the trial lawyer profession. How much money one managed to suck out of the economy might be of worth to some, but it says nothing to how well you advanced truth and justice.
Gee, I thought a trial lawyer's job was to advocate for his client's interests. If I'm up against the wall, I'll take the trial lawyer that doesn't mind leaving the ivory tower and rolling up his sleeves, trust &justice notwithstanding.
In the other Jamail depo that's been mentioned, Joe was the only one out of line and so the motion could be, and was, filed. For years now, I've been having my students do dramatic readings of both the famous Jamail depos. The reaction is usually a mixture of laughter and disgust. If anyone wants the two transcripts, shoot me an email.
For me, the funniest thing about the clip is that the melee nearly breaks out in response to the question "was that your [job] title the whole time?" -- which is one of the most innocuous questions you will ever hear at a depo.
I'm trying to remember the last time my client asked me to "advance truth and justice." While most clients believe truth and justice are best served by their own victory, and I almost always agree, my oath is to zealously protect my clients' best interests, while also upholding the law.
If the other side does the same, truth and justice are almost always advanced.
[However, I do this while behaving civilly, and remaining truthful and faithful to the law.]
Maybe the community is small. 600,000 population, but the legal community is still small. Your reputation is something that can be valued rather precisely. To heck with Martindale-Hubbell. A few phone calls will establish (despite several thousand attys in the area) whether you are (a) a good fellow or (b) "I wouldn't trust him." In this sort of a world civility is just the bare minimum. You also need, and will protect at all costs, a reputation for never once lying (evading a question is generally OK), and never, ever, making a promise and failing to follow through. NEVER.
I made the calls on one fellow I didn't know, and the reply came back that he was rated "I wouldn't trust him entirely," based on something a former partner had said about their breakup years before. I'm not saying we are wussies... fight as hard as you want. Just never lie and never break a promise, and never go too far in exceeding civility. The last is flexible, the others are not.
If I remember correctly, Joe Jamail is local council (with Williams &Connoly as main counsel) for Vinson &Elkins in the Enron litigation. That's a remarkable vote of confidence for something that will impact the future of a major law firm. It may be easy to dismiss 'ol Joe, but when you're trouble, who are you turning to?
What does the judge's gender have to do with anything?
Let's see if we can make this sentence more apt: "Some Federal judges, who have never litigated, (like many of those appointed in recent years), might sanction the attorneys.
Much better.
--G
WTF? What's with the qualifier "female?" Do you mean to imply, seriously, in the 21st century, that a concern with civility is "unmanly"?
I know that the federal district judge for whom I clerked could be angered by nothing so much as a lack of courtesy. He simply would not tolerate it. He practiced what he preached too: Many is the time I would upbraid counsel in a first draft of an opinion; while it might win a wry smile of acknowledgment from the judge(and have been well deserved), the comment never made it into the final opinion. He certainly would have entertained a motion for sanctions based on this deposition (except that he always, praise be, delegated discovery to the magistrates).
I also once worked for a man with a reputation as one of the best trial lawyers in America. He taught the same lesson, and it reflects poorly on our profession that so few of us have learned it: It's possible to disagree without being disagreeable.
I've been told that this sort of deposition is not unusual in Texas trial practice.
I believe it was the Delaware supreme court that banned him from practice. He had some choice words for them as well, since he doesn't generally practice in Delaware.
Joe has never been known as a nice guy. Before the Texaco case, he was most famous for having flunked torts at UT. I believe that the UT law library is still the Tarlton Law Library, although Jamail's name appears above the front door.
Some lawyers are effective by being bastards and some are effective by being polite. Some clients prefer to hire the bastard, since it makes their opponent's life more miserable.
No, of course not.
I knew I'd get in trouble for saying that. Yes, it's true that male judges also frown on the type of blustering depicted in the video--particularly Federal judges who have never litigated. But in my experience, there is a much closer correlation between the judge's gender, and their willingness to step up and slap ill mannered lawyers.
However, my bigger point was that most judges will be more annoyed by having to deal with a motion based solely on offensive conduct, than the conduct itself. If you're going to bring a motion, you had better be able to show the conduct resulted in suppression of evidence or somehow impeded the conduct of discovery. Otherwise, the moving party is perceived as a whining tattle tale, who is wasting valuable courtroom time. "Mommy, he stuck his tongue out at me! Wah!"
Don't get me wrong: I don't condone this type of behavior, and it is not the way I practice. But I do believe a good litigator needs to be aggressive, and to wear a thick skin. Name calling and threats do not shake me in the slightest, and I would never consider bringing a motion unless I felt it helped my client somehow, and I knew the judge's predisposition toward such things.
Heh, this reminds me of one time when a plaintiff's attorney was spitting in my face and threatening to punch me out in a Federal courtroom in Michigan. It was during a recess, when I went to examine a machine that was the subject of a product liabilty lawsuit. The machine was manufactured by my client, and it was marked as an exhibit. I was eyeballing some modifications made by the plaintiff, when his attorney got in my face and warned me not to tamper with the evidence. (I was eyeballing, mind you--never even touched it). I was dumbfounded, and replied to his idiocy with something I thought well-suited for his intellect: I said, "duh!" He clenched his fists, stepped up so our noses were about 2 cm apart, and was yelling and blustering and plastering my face with spit. I could only laugh, which made him even angrier. I continued to examine the machine, and then pointed out that there were a half-dozen video cameras trained on us. It was a pleasure to collect the $20,000 litigation costs from his client after the trial.
Not that I'm defending it: this behavior cries out for sanctions. And on top of it all, nobody's client got any serious business taken care of that day; it was all wasted with stupid lawyer behavior.