During 2008 and 2009, civil litigators throughout the country were invited to participate in three national surveys considering whether the federal and state civil rules of procedure—especially the discovery rules—should be reformed. The American College of Trial Lawyers and the Institute for the Advancement of the American Legal System published their study in March 2009. Next was the Federal Judicial Center, which published the results of its survey [PDF] in October 2009. The ABA Section of Litigation produced its report [PDF] in December 2009. All three analyses are comprehensive, and while they reach some disparate conclusions, they agree on certain points, including the proposition that professionalism and collegiality among adverse counsel are essential to a well-functioning and cost-effective litigation process.
In the Section of Litigation survey, 95 percent of respondents agreed that collaboration and professionalism by adverse counsel can reduce client costs. Approximately the same percentage of respondents in the Federal Judicial Center survey agreed that “attorneys can cooperate in discovery while still being zealous advocates for their clients.” Getting 95 percent of trial lawyers to agree on anything is arguably quite an achievement, and the fact that all three studies report the same results on this singular question is significant.
One might think, given the near unanimity of thought on the importance of collegiality among adverse counsel, that the behavior of the profession as a whole would reflect such standards. The expansive body of case law under Federal Rules of Civil Procedure 30(d)(2) and 37 and comparable state rules imposing sanctions for discovery abuse belies that assumption. Particularly troublesome are the cases dealing with attorney misconduct during depositions, as well as witness misconduct that the witness’s lawyer does not restrain.
Paramount Communications v. QVC Network [PDF] is the harbinger of the modern reported decisions on attorney misbehavior during deposition. The Supreme Court of Delaware was so troubled by the conduct of defending counsel that it addressed his actions in an “addendum” to its decision, the body of which concerned fiduciary duties under corporate law and had nothing whatsoever to do with discovery, much less its abuse. Clearly of the view that simply characterizing the attorney’s misconduct toward the interrogating lawyer would not capture its full flavor, the court quoted at length from the offensive transcript, which including defense counsel’s remonstrations that questions were “stupid,” that the interrogating counsel was an “a-hole” and should “shut up,” that he did not know what he was doing and that he should “get done” with the questioning.
Insults levied at the witness are another frequent basis for sanctions. In Freeman v. Schointuck, counsel was sanctioned for accusing the witness of “feigned ignorance” and “getting an A plus” in being evasive, and for engaging in a continuous stream of sarcastic comments suggesting that the witness was lying. In Redwood v. Dobson a Section 1983 claim, deposing counsel was censured for asking the witness whether he had ever engaged in homosexual conduct or was involved with a “homosexual clique”—matters wholly irrelevant to the lawsuit. “Demeaning and inappropriate tactics” in taking depositions, along with other improprieties, were cited in In Re Fletcher [PDF] as grounds for suspension from the practice of law for three years. In deposition, the lawyer belittled the witness—a police chief—about the fact that he could not remember the year in which an employee’s rape had occurred, but he did remember when he graduated from high school.
A relatively recent case, GMAC Bank v. HTFC Corp. [PDF], emphasizes that serious sanctions can be imposed on a lawyer who does not restrain his client from behaving abusively while being deposed. Much of the witness’s “testimony” is unfit for a general audience, although it is unexpurgated in the published opinion. The court summarized the record as follows: “In fact, [the witness] used the word ‘f---’ and variants thereof no less than 73 times. To put this in perspective, in this commercial case . . . the word ‘contract’ and variants thereof were used only 14 times.”
These illustrative cases are the tip of the iceberg. There are many reported cases on the subject, and most litigators have their own store of anecdotes. The apparent disconnect between the aspirations of civil litigators as reflected in survey results, on the one hand, and empirical experience, on the other, should be cause for concern. Trial lawyers should behave civilly not simply because Rules 30 and 37 authorize sanctions for misconduct, but because it is more efficient, less costly, and serves the cause of justice, to act like a professional.
Charles S. Fax is an associate editor for Litigation News.