In an earlier column, I surveyed some of the most notorious cases in which obstructive behavior by counsel conducting a deposition, counsel defending the witness, or the witness warranted imposition of sanctions. The distinguished feature in these cases was the outrageous behavior of the miscreant. The lesson to be learned from these opinions is simply not to act like a jerk.
A recent sanctions decision by U.S. District Court Judge Mark Bennett of the Northern District of Iowa addresses a far more common deposition scenario—and one in which any lawyer who engages in deposition practice will see elements of his or her own behavior. That is what makes Judge Bennett’s opinion compulsory—though unsettling—reading for all civil litigators.
In Security National Bank of Sioux City v. Abbott Laboratories, the conservator of a minor child brought a products liability action against the manufacturer of baby formula, alleging that it contained dangerous bacteria that caused the child to suffer serious brain damage. The case went to trial on design defect, manufacturing defect, and warning defect claims. The jury found in favor of the defendant. By all accounts, defense counsel, from one of the most distinguished law firms in the country, did an outstanding job. At the conclusion of his sanctions opinion, Judge Bennett praised counsel’s “noteworthy trial skills, expertise, and preparation.” Yet, on the day the judgment was filed, Judge Bennett, sua sponte, entered a show-cause order as to why he should not sanction that lawyer for the serious pattern of obstructive conduct that counsel displayed during pretrial depositions. Six months later, Judge Bennett filed his opinion imposing sanctions.
Judge Bennett identified three categories of sanctionable misconduct—though he imposed sanctions only for the second and third, for reasons I shall explain. The first category was repetitive “form” objections, in which counsel stated “objection, form” without explaining the particular basis for the objection, e.g., “hearsay” or “lack of foundation.” The judge saw these repetitive form objections as useless other than to signal the witness to challenge the phrasing of the question and force the questioner to reframe or withdraw the question. The judge did not impose sanctions for this—as the practice of stating simply “objection, form” is allowed in some districts. However, he cautioned that in future cases he would do so.
The second category was “witness coaching”—but of a relatively benign variety. Counsel would object to a question as “vague,” “speculation,” or “ambiguous,” after which the witness invariably would ask for clarification or decline to answer the question. How many of us have not made such objections in defending depositions? In reading through the excerpted transcripts that support the judge’s analysis, I could not help but feel that part of his concern was that the witness was too well-prepared. That is, he was exquisitely coached to dodge and weave when prompted by a one- or two-word objection by his counsel. If only counsel had measured such objections and the witness had occasionally retorted by saying, “No, it’s okay, I understand the question,” the judge may not have been as critical.
Excessive and unnecessary interruptions constituted the third category of misconduct. Judge Bennett found that counsel’s name appeared on average once on every page of one deposition transcript and three times on every page in a second deposition transcript. Surely, this is extreme, but I confess to occasional instances when, frustrated with the inanity or irrelevance of the questions, I have displayed comparable impatience.
As an outside-the-box sanction for these transgressions, Judge Bennett required counsel to prepare a training video, to be approved by the court, discussing the opinion and counseling ways to comply with its rationale. The video was to be shown within the law firm but could otherwise be maintained as confidential. Defense counsel quickly noted their appeal, and Judge Bennett stayed enforcement of his order pending its outcome. Whatever the result, this opinion warrants close reading as one judge’s meticulous application of the rules and intolerance of behavior that, in my experience, is all too common. Perhaps if more judges were willing to impose sanctions for this type of conduct, the frequency of such behavior would decline. Assuredly, this would be a benefit for all.
Charles S. Fax is an associate editor for Litigation News.