Judge Easterbrook on Bad-Mannered Lawyers

"This is a grudge match," begins Judge Easterbrook's opinion in Redwood v. Dobson. The case concerns bad behavior by lawyers in depositions. It's an opinion with an undeniable entertainment value, though you have to keep in mind, as Easterbrook himself points out, that the behavior by the lawyers described in the case is "not as bad as the insult-riddled performance by Joe Jamail that incensed the Supreme Court of Delaware."

If you're keeping score, lawyers on both sides of the case behaved badly. By the end of the opinion, Easterbrook takes it upon himself to "censure" some of them and "admonish" another, the latter sanction being not so harsh as the former. Here's a recounting of some of the lawyers' wrongs--

• Asking harassing questions;
• Feigning an inability to remember;
• Pretending not to understand ordinary words;
• Giving improper instructions not to respond.

Did I mention the deponent was a lawyer? If you decide to read the case for its practical tips, Easterbrook's opinion explains the few circumstances in which a deponent can be instructed not to answer a question under the federal rules. "A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4)." Note that being harassed isn't on the list. In that event, the defending lawyer must call off the deposition and apply for a protective order.

The deponent, meanwhile, may be entitled to "stalk out of the room," though that part of Easterbrook's opinion might merely be dicta.

Comments

[Ted]

A censure for instructing a witness not to answer seems strict, considering the practicality that most parties would prefer that result to cutting off the deposition, and one unfortunately cannot be assured of a federal district judge who is as familiar with the current rendition of Rule 30 as Judge Easterbrook is. (Indeed, the district court judge in Redwood erroneously applied Rule 30 according to the appellate opinion.)

If one were to walk the tightrope that Redwood presents us, I would recommend objecting as follows: "We find that question objectionable. I would prefer not to suspend the deposition here to seek a protective order, but Rule 30 offers me no other alternative. Can we agree that you will postpone this question until the end of the deposition, and we'll seek the protective order then?" By doing this, one demonstrates good faith and places the burden on the questioner of choosing to end the deposition early over this question. That's not complete protection by any means: the questioner can stand her ground, and then still seek sanctions for the costs of a second day of deposition if the protective order is denied. It's an elaborate game of chicken, to be sure, and I've been on both sides of intimidating junior attorneys and having senior attorneys try to intimidate me in that game.

[Michelle]

The link for Redwood does not work for me.

[Evan]

Michelle: It should work now.