March 03, 2015 Articles

Dealing with Difficult Opposing Counsel

Learn how to stave off inappropriate behavior from the other side of the table

By Theresa W. Parrish

Attorneys practicing in federal court have a powerful weapon to stave off inappropriate behavior by opposing counsel (or to measure the consequences of their own). Federal Rules of Civil Procedure Rule 30(d)(2) provides that  “[t]he court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.”

The related commentary to Rule 30(d) notes that “depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.” The commentary confirms that the court can “impose the cost resulting from obstructive tactics that unreasonably prolong a deposition on the person engaged in such obstruction.” This could include the deponent, any party, or any other person involved in the deposition. Finally, counsel are reminded that they “should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.”

Examples of such conduct by an attorney defending the deposition of one of his expert witnesses that resulted in sanctions being imposed are found in the case of Heriaud v. Ryder Transportation Services, No. 03-289 U.S. Dist. Lexis 19378 (N.D. Ill. Sept. 8, 2005). In Heriaud, a U.S. magistrate judge ordered the exclusion of the plaintiff’s liability expert at trial because of the conduct of both plaintiff’s counsel and his expert at the expert’s deposition. The trial judge affirmed that exclusion in Heriaud v. Plunkett, No. 03-289, 2006 U.S. Dist. Lexis 10886 (N.D. Ill. March 14, 2006), with only a modification of the monetary sanctions awarded to defense counsel.

The court noted that during the deposition of the plaintiff’s liability expert, plaintiff’s counsel was “hostile from the beginning” and “argumentative and combative—for no apparent reason,” Heriaud at *6; made “constant interruptions and objections” to even “mundane” questions, interrupting the flow of the deposition, id. at *7; “obstructed the dialogue” between the defense attorney and the expert “on one of the most critical issues in the case,” id. at *8; and generally acted in a way apparently “designed to rile his adversaries” and “suggest answers to” the expert, id. at *10, with his objections becoming “increasingly hostile and personal” to defense counsel as the questioning proceeded, id. at *12.

Plaintiff’s counsel in Heriaud tried to defend his actions by complaining about how badly defense counsel had behaved. The court quickly rejected that as any justification, admonishing him that a deposition is not a “playground or a boxing ring where one feels out his opponent” to see what he can get away with. Id. at *21. The court concluded that the expert became “obstreperous and hostile” because he saw plaintiff’s counsel do so and began engaging in name-calling toward defense counsel and refusing to answer questions. Id. at *22. The court concluded that the deposition transcript was rendered “worthless” by all these actions, id. at *24, and that plaintiff’s attorney “had so poisoned the atmosphere in that room that it is unlikely that the defendants could ever build a rapport with [the expert]; it is unlikely that the witness would ever be forthcoming and cooperative with the defendants’ attorneys.” Id. at *24. Accordingly, the court decided that simply allowing another deposition of the expert was insufficient, and that only striking the expert as a witness could rectify the damage done.

Parties to a lawsuit often want their lawyers to be aggressive and to follow a mantra of “confusion to the enemy.” Decorum at depositions may vary from one part of the country to another. But the federal court, applying Rule 30(d)(2), can and apparently will intercede when the lawyer’s behavior crosses over into creating an “impediment” to a “fair examination of a deponent."

Keywords: litigation, trial practice, depositions, working with opposing counsel

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