Judge Calls Down Lawyers For Deposition Misconduct

Posted on August 16, 2010 by John Day

All lawyers know that judges don't like discovery disputes, and some lawyers take advantage of that by violating the rules at depositions.

United States Magistrate Peggy A. Leen entered this Order when confronted with lawyers who ignored the rules.  An excerpt:

The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:

I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, non-argumentative and non-suggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as "if you remember," "if you know," "don’t guess," "you’ve answered the question," and "do you understand the question" are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.
Although these papers, and the conduct they relate, make me feel like a school marm scolding little boys, I am the judge whose duty it is to decide this motion. Accordingly, Mr. Kossack and Mr. Cannon are admonished for engaging in conduct which I know you know violates Rule 30(c)(2). You are better men and better lawyers than the conduct in which you have engaged illustrates.

A fine arrow for the trial lawyer's quiver.  Thanks to Trial Ad Notes for advising me about the opinion.

 

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New Tennessee Legislation of Interest to Tort Lawyers - Post 16

Posted on August 28, 2009 by John Day

Post 16 of this series addresses a change in the law applicable to taking of depositions.  The bill summary set forth below describes the original bill as amended.  The new law


prohibit[s] the taking of a deposition before a person who is:

(1) A party to the action or an attorney for one of the parties;
(2) A relative, including a spouse, of one of the parties or of an attorney for one of the parties;
(3) An employee of one of the parties or of an attorney for one of the parties;
(4) Someone who has, or has had during the past two years, a sexual relationship with one of the parties or with an attorney for one of the parties; or
(5) Someone with a financial interest in the action or its outcome.

This amendment authorizes a deposition to be taken before a person described in (1) through (5) if all of the parties enter into a written stipulation pursuant to Rule 29 of the Rules of Civil Procedure. 

This amendment requires any person before whom a deposition is to be taken to disclose to the parties in a timely fashion the existence of any facts known to such person which are relevant to the factors set forth in (1) through (5). It will be a Class C misdemeanor for any person to take a deposition and knowingly fail or refuse to disclose any facts required by (1) through (5).

This amendment specifies that any lawyer or lawyer's agent may operate video equipment in the case of a videotaped deposition.

A deposition taken by a person described in (1) through (5) will be voidable at the election of any party unless the parties have stipulated otherwise, an appropriate court order prohibits such election, or the party attempting to void the deposition violated the provisions of this amendment directly or through a related person described (1) through (5). An election to void a deposition pursuant to this amendment must be made within 30 days of discovery of the violation.

This amendment prohibits any person who is forbidden to take a deposition in an action pursuant to the provisions of this amendment from recording or transcribing for submission to any court or administrative tribunal any hearing before any court or administrative agency concerning such action.

Here is the complete text of Public Acts, 2009 Public Chapter 427.   See the Legislation 2009 Category for more changes to Tennessee statutory law of interest to tort lawyers.

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