All too often attorney misconduct in the course of litigation goes unreported and unpunished. Incivility in litigation delays the resolution of cases, taxes an already overburdened judiciary, and increases the cost of litigating a matter. Despite this, attorney incivility is regrettably on the rise in state and federal courts around the country. One federal magistrate judge recently decided that enough was enough and issued a benchslap to a pair of attorneys for misconduct at a deposition. In his recent opinion in Sokolova v. United Airlines, Magistrate Judge Jeffrey Cole issued a scathing rebuke of the attorneys while offering a primer on proper deposition decorum.
The deposition that spawned dueling sanctions motions and accusations and cross-accusations of discovery misconduct got off to an unceremonious start with plaintiffs’ counsel arriving nearly 30 minutes late according to the opinion. Things improved little from there. Almost immediately after starting the deposition, things went off the rails when plaintiffs’ attorney took issue with the interpreter’s translation of the oath.
The magistrate detailed numerous instances throughout the deposition where plaintiffs’ counsel took issue with the interpreter’s translations. The exasperated interpreter ultimately expressed her frustration with plaintiffs’ counsel on the record and questioned why her “efforts are being met with animosity.”
Tempers continued to flare to the point the interpreter accused plaintiffs’ counsel of giving her dirty looks. Plaintiffs’ counsel responded by calling the interpreter unprofessional and her translating skills “mediocre.” The magistrate quoted the tense, on-the-record exchange in his opinion:
INTERPRETER: Please don’t give me this look, counsel. Would you please ask [plaintiffs’] counsel not to look at interpreter. This is not very pleasant look of his. . . You’re very sensitive to the needs of your client, so, by all fairness, relax and let interpreter do her professional job for the sake of your client.
PLAINTIFFS’ COUNSEL: Who said it’s professional?
INTERPRETER: Counsel, this is an offense. . . This counsel is being rude and obstructive and very impolite, very unprofessional. He has nothing to do with.
. . .
PLAINTIFFS’ COUNSEL: I have my own opinion as to the mediocre quality of that translation and multiple and continuous errors in translation and mistakes. That’s why I don’t call it professional.
After the plaintiffs’ attorney ended the deposition early, the parties agreed to continue the deposition at a later date. The second session did not go much better than the first. Defense counsel ultimately terminated the deposition after an argument between plaintiffs’ counsel and the interpreter in which the interpreter called the plaintiffs’ attorney a “liar” and defense counsel called plaintiffs’ attorney a “bully” and “unprofessional.” The magistrate’s characterization of the plaintiffs’ attorney’s behavior was not much kinder. The magistrate described the attorney as “vituperative” and “intemperate,” noting that he “tended to go from zero to insulting rather quickly, often without much, if any, provocation.”
The magistrate also chided the plaintiffs’ attorney for apparently failing to explain to his client the function and procedures of a deposition. The plaintiff, the magistrate speculated, “may have been under the misimpression that [the deposition] is her chance to finally be heard and tell her story.” “Of course,” Magistrate Judge Cole explained, “it’s not.” Rather than providing an opportunity for a party to tell her side of the story, “the goal of all examinations,” the judge explained, is to “gather relevant information.”
“Unfortunately, all too often,” the magistrate explained “a lawyer defending a deposition resorts to obstructionism to prevent the examiner from obtaining the sought after information.” Attorneys seeking to improperly interfere with the truth-seeking function of a deposition frequently employ “nastiness and inappropriate and improper interruptions and misdirection – operating under the guise of cleverness (or claimed to be justified as devices to ‘protect the witness’).” “Unfortunately,” the judge lamented, “all too often, these illicit stratagems are successful, and the examiner fails in the attempt to gather relevant information.”
The court’s full opinion can be found here.
When dealing with attorneys who resort to the obstructionism referred to by Magistrate Judge Cole, the best litigation attorneys do not allow themselves to get distracted by the improper behavior or fail to gather the needed information. There is no substitute for experience when it comes to handling such attorneys. Our business litigation and commercial dispute attorneys have taken and defended hundreds of depositions in state and federal courts around the country. We know how to deal with these attorneys and how to counter and stymie obstructive behavior.
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