Handling Difficult Opposing Counsel and Questionable Tactics, Including Recent Decisions

November 21, 2014

Association of Corporate Counsel- Iowa Forum

Wilford H. Stone, Lynch Dallas, P.C., Cedar Rapids

INTRODUCTION

“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. Ofcourse, there are stinkers in the Iowa bar, but they are few and far between.” Judge Mark Bennett, Abbott Laboratories sanctions order, 299 F.R.D. 595, footnote 8(N.D. Iowa 2014)

TODAY’S SPEECH

  1. Today’s focus is on handling difficult opposing counsel and their questionable tactics.
  2. The Iowa Standards for Professional Conduct, states that a lawyer’s conduct should be characterized at all times by personal courtesy, civility, and professional integrity in the fullest sense of those terms. (33.1(1)). While this is ideal, we all know that often times parties fall short of these lofty goals of civility. See

DISCOVERY

  1. There are multiple discovery abuses and conduct that opposing counsel can engage in to frustrate your case, your client, and you.
  1. FAILURE TO FULLY ANSWER/SUPPLEMENT DISCOVERY REQUESTS

a.In Lawson v. Kurtzhals, 792 N.W.2d 251 (Iowa 2010) the plaintiff had been struck by a car while out riding his bicycle. He filed a personal injury suit against the defendant. During discovery, the defendant filed interrogatories requesting that the plaintiff detail the losses he incurred and the damages he was seeking, and also asked the same questions at a later deposition. In both instances, the plaintiff noted he had had some past medical expenses, and his clothing had been damaged, but that he and his lawyer would supplement those responses to include further damages at a later time. They never supplemented those answers. The defendant then filed a motion in limine, asking the court to prohibit evidence from being admitted at trial of plaintiffs damages not discussed in the discovery responses. The court ruled in favor of the defendants, and only allowed evidence of past disclosed medical expenses and clothing damage to be admitted at trial. Moral: The cases state that under Iowa Rules of Civil Procedure 1.503(4) parties are required to supplement these responses, and the duty to supplement is on the party answering the request.

b.InRaye v. Central Iowa Hosp. Corp., WL 31757262 (Iowa Ct. App. 2002) a patient brought a medical malpractice claim against a hospital and its physicians. The hospital and defendants asked for medical records and information prior to the alleged date of injury and the patient failed to provide any information and even affirmatively stated he had previously had no serious injuries or conditions. It later came to light during depositions that the patient previously had a serious medical problem (hernia and abdomen bulge) which had been operated on prior to the date of the alleged injury. The trial court sanctioned the plaintiff by dismissing the claim. The appeals court reversed the trial court’s dismissal, but ruled that sanctions were appropriate and remanded for reconsideration. The Court noted that once discovery was supplied, it was the plaintiff’s ongoing duty to supplement any incomplete and correct any inaccurate responses under the IRCP 1.503(4).

c.This violates Iowa Rule of Professional Conduct 32:3.4 Fairness to Opposing Party and Counsel, which states that a lawyer shall not fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

d.Misconduct involving misrepresentations and candor towards the tribunal. Iowa Supreme Court Attorney Disciplinary Board v McGinness, (Iowa 2014)(attorney suspended for six months after he photocopied old certificates of service in an attempt to deceive opposing counsel into believing he had served him with discovery requests when he had not, and then also told the court that he had not done so and “continued to hide from the district court what he knew to be the truth.” Court was also upset because this incident caused a completely unnecessary hearing about a “collateral matter completely unrelated to the merits of the underlying lawsuit.” While the court on appeal noted McGinness “fell on his sword,” and unequivocally conceded his conduct and did not attempt to explain it away by blaming others or citing “vague” mitigating circumstances, it also found the “persistence” of his conduct was a “remarkable aggravating factor” and that he failed to self- report his conduct.)

e.“Predatory” discovery: Another form of attorney abuse is over-discovery, or the use by the requesting party of a blizzard of document requests, interrogatories, and deposition notices. The responding party, in turn, may attempt to bury her opponent in boxes of documents. Both gambits allow a litigant to externalize the costs of discovery byforcing her opponent to bear a disproportionate cost. This term comes from Judge Posner's opinion in Marrese v. Amer. Academy ofOrthopedic Surgeons, 726 F.2d 1150, 1162 (7th Cir. 1984). Predatory discovery, by definition, is "sought not to gather evidence that will help the party seeking discovery to prevail on the merits of his case but to coerce his opponent to settle regardless of the merits .. " Id. at 1161.

DEPOSITIONS

  1. Anyone that has been involved with a deposition is likely to have witnessed some bad behavior: useless objections, angry posturing, witness coaching, or something similar. We all know we have to be there, so how do we deal with these situations?
  1. In Security National Bank of Sioux City, Iowa v. Abbott Laboratories, No. C 11-4017-MWB Memorandum Opinion (U.S.D.C. N. Dist. IA. West. Div. 2014), Judge Bennett honed in on the issue of deposition objections. In this complicated products liability case, a lawyer from outside of Iowa engaged in some difficult and questionable behavior. Judge Bennett noted this bad behavior came in three categories: an astounding number of form objections without recognized basis for objection, coaching the witness, and excessive interruptions causing the fair examination of the witness to be frustrated and delayed.
  2. First, the visiting lawyer objected to the form of the examiner’s question at least 115 times, and could be found on nearly 50% of the pages of the deposition transcripts. Sometimes the lawyer followed the form objection with a particular basis, such as speculation or narrative, but often she simply objected by stating “form,” leaving the opposing counsel to guess as to the basis of the objection.
  3. Example:
  4. Q: Would it be fair to say that in your career, work with milk fortified has been a significant part of your job?
  5. COUNSEL: Object to the form of the question. “Significant” is vague and ambiguous. You can answer it.
  6. 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…

Judge Bennett noted that is his view, objecting to “form” merely vaguely suggests that the objector takes issue with the question, but it not actually a grounds for an objection, nor does it preserve an objection- it merely refers to a category of objections that are appropriate and should be used: leading questions, lack of foundation, assumption of facts not in evidence, mischaracterization or misleading question, non-responsive answer, lack of personal knowledge, testimony by counsel, speculation, asked and answered, argumentative question, and witness answers beyond the scope of the question.

Other proper objections would include privilege and confusing questions. On the other hand, improper objections include: irrelevant; hearsay; and calls for opinion; and speaking and coaching objections.

Example:

  1. “Objection, form of the question” is an improper objection.
  2. “Objection, lack of foundation” is a proper objection.
  3. “Objection, opposing counsel has not previously appropriately laid out the foundational elements to prove that the document he is referring to is an accurate and verifiable document before asking my client this question” is an improper objection.
  4. Objection, answer only if you know is an improper objection.
  5. Objection, do not guess or speculate is an improper objection.
  6. Objection, you can answer if you understand the question is an improper objection.
  7. Objection, the document speaks for itself is an improper objection.
  1. Judge Bennett explicitly stated “lawyers should consider themselves warned,” unspecified form objections are improper and will invite sanctions if lawyers choose to use them in the future.
  2. Second, Judge Bennett turned to witness coaching. Under Federal Rule 30(c)(2) deposition objections must be stated concisely and in a nonargumentative and nonsuggestive manner. Lawyers are strictly prohibited from making any comments that might suggest or limit a witness’s answer to an unobjectionable question. Here, Judge Bennett found the visiting lawyer’s frequent interjections often prompted witnesses to give particular desired answers to the examiners questions in a variety of ways- the lawyer even went so far as to answer for her witness, or audibly disagree with her witness’s answer.
  3. Example:
  4. Q: (Referring to a document) Is that accurate or is there something that they… just chose not to put…
  5. COUNSEL: If you know. She didn’t write this.
  6. A: Yes, I didn’t write this.
  7. Example:
  8. Q: Do you know if that test was performed in Casa Grande or Columbus?
  9. A: I don’t.
  10. COUNSEL: Yes, you do. Read it.
  11. A: Yes…
  12. Third, Judge Bennett focused on the grossly excessive number of interjections and objections that visiting counsel made during the depositions. Her name appeared between one and three times per page on average, and nearly all of these appearances were unwarranted and unnecessary.
  13. Sanctions: Judge Bennett went on then to require the visiting lawyer to produce a training video for her entire firm, explaining the holding and rationale of the opinion and its views on proper deposition behavior and objections, without any help as to the creation of its contents. She then had to send it to all attorneys in her firm nationwide(but is not required to make it public.) We have all been warned.
  14. Note- the court was upset at the “coaching,” objecting, for example, that a question was confusing and then the witness answers I can’t answer the question because it was confusing.”
  15. By the way, the sanctioned defense counsel won at trial and the Court was quite complimentary of their conduct at trial: “Despite Counsel’s deposition conduct,I was greatly impressed by how Counsel performed attrial. Unlike the “litigators” I discussed earlier, Counselwas extremely well-prepared, had clearly masteredthe facts of this case, and did a great job of incorporatingelectronic evidence into Counsel’s direct- and cross examinations. Those aspects of Counsel’s noteworthy trialskills, expertise, and preparation are laudable, but they do notexcuse Counsel’s pretrial conduct. “
  1. Judge Bennett is not alone: In MAG Aerospace Industries, Inc. v. B/E Aerospace, Inc., U.S.D.C. Central District of California(Order 2014)-- A judge's decision declared a deposition a "train wreck" because defense counsel attorney repeatedly objected that the opposing counsel's questions were too vague.
    The attorney's numerous objections during the deposition of an employee of B/E Aerospace Inc., disrupted any worthwhile examination and "reflects poorly on the entire judicial process," U.S. Magistrate Judge Frederick Mumm. Judge Mumm said that during the seven-hour deposition, counsel for patent owner MAG Aerospace Industries Inc. asked the B/E employee "perfectly clear (albeit broad)" questions about B/E's allegedly infringing vacuum toilet bowls used in aircraft, but the employee claimed he did not understand common words like "what" and "have." Opposing counsel "hopped on the bandwagon" and began objecting to the questions, the judge said. He chastised the attorney for "continually interposing inappropriate objections" and said the attorney and the witness acted "like a tag team," repeatedly asking MAG's attorney to be more precise."The witness and his counsel may have taken some temporary pleasure in frustrating plaintiff's counsel’s ability to obtain any information from the witness, but the judicial process and the public's perception of it suffers," the judge wrote.
  2. The Court granted plaintiff’s ex parte motion, and ordered that defense counsel would be limited to three objections, and would not be allowed to object as to vague, lack of foundation, hearsay or a variety or other objections, nor interrupt questioning by the plaintiff except for the limited reasons allowed. The Defendant also was ordered to reimburse plaintiff for the attorney and court reporter fees for the entire initial deposition session, as well as the costs of preparing the ex parte motion.
  1. In Van Pilsum v ISU, 152 F.R.D. 179(U.S.D.C. S.D. Iowa 1993) plaintiff’s counsel took it upon himself to restate defense counsel’s questions in order to clarify them, even though, according to the court, plaintiff clearly had no difficulties understanding or communicating in the English language. Plaintiff’s counsel coached his witness, make inappropriate objections, and attacked defense counsel’s ethics, litigation experience, and honesty. The court noted that Plaintiff’s counsel was responsible for over 20% of the lines of deposition testimony, even though defense counsel was asking the questions. The court noted that these “Rambo –style” tactics, which may be client and ego satisfying, will not be tolerated by the courts. The court granted sanctions, granting a protective order and appointing a discovery master to oversee depositions, all now required to take place in the federal courthouse. The court stated that such acrimony does not serve clients or the justice system, but instead necessitates the provision of day care for counsel who, like small children, cannot get along and require adult supervision.
  1. In Re Fletcher, 424 F.3d 783(8Th Cir. 2005)(Missouri case- attorney suspended for three years after finding that he engaged in a pattern and practice of conduct including conduct during depositions described as “combative” and “macho posturing” in part because of comments that were “belittling” and “threat-like.” He also selectively quoted deposition testimony that grossly mischaracterized deponents’ statements and conduct that went beyond zealous representation into deceptive and misleading practices.)
  1. Another example of a different type of bad deposition and attorney behavior comes from Paramount Communications Inc. v. QVC Network, Inc., 637 A.2d 34 (Delaware 1993)The court noted that the misconduct in this deposition demonstrates an astonishing lack of professionalism and civility that it is worthy of special note here as a lessor for the future of conduct not to be tolerated or repeated. During the deposition, an attorney names Mr. Jamail abused the privilege of representing a witness in that he improperly directed a witness not to answer questions, was extraordinarily rude, uncivil, and vulgar, and he obstructed the ability of the examiner to elicit testimony to assist the Court.
  2. Example:
  3. MR. JOHNSTON: Okay. Do you have any idea why Mr. Oresman was calling that material to your attention?
  4. MR. JAMAIL: Don't answer that. How would he know what was going on in Mr. Oresman's mind? Don't answer it.Go on to your next question.
  5. MR. JAMAIL: He's not going to answer that. Certify it. I'm going to shut it down if you don't go to your next question.
  6. MR. JOHNSTON: No. Joe, Joe—
  7. MR. JAMAIL: Don't “Joe” me, asshole. You can ask some questions, but get off of that. I'm tired of you. You could gag a maggot off a meat wagon. Now, we've helped you every way we can.
  8. Example:
  9. MR. JAMAIL: Now, you want to sit here and talk to me, fine. This deposition is going to be over with. You don't know what you're doing. Obviously someone wrote out a long outline of stuff for you to ask. You have no concept of what you're doing.Now, I've tolerated you for three hours. If you've got another question, get on with it. This is going to stop one hour from now, period. Go.
  10. MR. JOHNSTON: Are you finished?
  11. MR. THOMAS: Come on, Mr. Johnston, move it.
  12. MR. JOHNSTON: I don't need this kind of abuse.
  13. MR. THOMAS: Then just ask the next question.
  14. MR. JOHNSTON: All right. To try to move forward, Mr. Liedtke, ... I'll show you what's been marked as Liedtke 14 and it is a covering letter dated October 29 from Steven Cohen of Wachtell, Lipton, Rosen & Katz including QVC's Amendment Number 1 to its Schedule 14D–1, and my question—
  15. A. No.
  16. MR. JOHNSTON: —to you, sir, is whether you've seen that?
  17. A. No. Look, I don't know what your intent in asking all these questions is, but, my God, I am not going to play boy lawyer.
  18. A: Okay. Go ahead and ask your question.
  19. MR. JOHNSTON: —I'm trying to move forward in this deposition that we are entitled to take. I'm trying to streamline it.
  20. MR. JAMAIL: Come on with your next question. Don't even talk with this witness. You understand me? Don't talk to this witness except by question. Did you hear me?
  21. MR. JAMAIL: You fee makers think you can come here and sit in somebody's office, get your meter running, get your full day's fee by asking stupid questions. Let's go with it.
  1. The Court noted that it found this behavior to be outrageous and unacceptable. The Court also noted that trial courts are “but a phone call away” and would be responsive to the plight of a party and its counsel bearing the brunt of such misconduct. They stated that staunch advocacy is proper and fully consistent with the finest effectuation of skill and professionalism, but this type of behavior is not in the best interest of the client.
  1. This conduct violates Iowa Standard for Professional Conduct 33.2(22), which states that attorneys will not engage in any conduct during a deposition that would not be appropriate in the presence of a judge.
  1. Cases with multiple witnesses and counsel : ask the court to establish deposition protocol. See, e.g. In re Stratosphere Corp. Securities Litigation, 184 F.R. D. 614(D. Nev. 1998)(Court ordering depositions to be videotaped; that cell phones were to be turned off and no smoking or firearms were permitted; all objections were to be made in strict accordance with FRCP 30(d); and that the lawyers were not to instruct a witness not to answer but to seek court intervention)

TRIAL AND MOTIONS