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The American Bar Association

Young Lawyers Division


2014 Spring Conference
Pittsburgh, PA

Jerk Management 101: Success Tips


for Taking Depositions with Difficult
Opposing Counsel (CLE)
Renaissance Pittsburgh
Jimmy Stewart, 2nd Floor
Thursday, May 15, 2014
3:15 PM 4:15 PM

JERK MANAGEMENT 101


Success Tips for Taking Depositions with Difficult Opposing Counsel

ABA YLD Spring Conference 2014


Pittsburgh, PA
May 15, 2014
3:15-4:15 p.m.
Presented by the YLD Antitrust Committee

Moderator/Speaker:
Christina M. Liu
Illinois Department of Insurance
Chicago, IL
Speakers:
Adrian K. Felix
Carlton Fields Jorden Burt
Miami, FL
Jason E. Hirshon
Slinde Nelson Sanford
Portland, OR
Elizabeth J. Palmer
Rosen, Rosen, Hagood LLC
Charleston, SC

Strategies and Tips for Dealing


with Dirty Litigation Tactics
by Opposing Counsel
Ronald L. Hicks, Jr.
Meyer, Unkovic & Scott LLP
535 Smithfield Street, Suite 1300
Pittsburgh, PA 15222
(412) 456-2837
rlh@muslaw.com

Ronald L. Hicks, Jr., is a partner and serves as the vice chair of Meyer, Unkovic
& Scotts Business and Tort Litigation Section. As a civil trial lawyer for the
past 25 years, Mr. Hicks has handled a variety of disputes, including claims of
misappropriation of trade secrets and intellectual property, breach of restrictive
covenants, breach of contract, insurance coverage, real estate and oil and gas
disputes, and election law. Mr. Hicks is listed as a Pennsylvania Super Lawyer,
maintains an AV rating with Martindale-Hubbell, and has been named by his
peers to The Best Lawyers in America for Commercial, Bankruptcy, Construction,
Intellectual Property, and Real Estate Litigation. Mr. Hicks received his B.A. degree,
with distinction, from Pennsylvania State University and J.D. degree from Wake
Forest University School of Law.

Strategies and Tips for Dealing with Dirty


Litigation Tactics by Opposing Counsel
Table of Contents
I. Introduction................................................................................................................................................155
II. Who Is a Rambo Lawyer?...........................................................................................................................156
III. Common Dirty Litigation Tactics and Strategies to Deal with Them.....................................................158
A. Scorched Earth Litigation Tactic.....................................................................................................159
B. Hiding or Failing to Produce Relevant Documents and Other Discovery.......................................163
C. Frivolous Objections to Discovery.....................................................................................................165
D. Improper Deposition Conduct: Coaching the Witness and Instructing a
Witness Not to Answer a Question....................................................................................................167
IV. Practical Tips on How to Deal with a Rambo Litigator............................................................................172
A. The Lack of the Courts Tolerance with Dirty Litigation Tricks.......................................................172
B. Practical Tips.......................................................................................................................................173
1. Know Your Case...........................................................................................................................173
2. Stay Focused and Remain Calm..................................................................................................173
3. Do Not Use Rambo Tactics..........................................................................................................173
4. Dont Turn Every Dispute into a Battle.......................................................................................174
5. Know Your Judge and His or Her Rules and Procedures..........................................................174
6. Maintain a Rambo Litigation File...............................................................................................174
7. Involve the Court and the Disciplinary Committee..................................................................174
8. Be Honest and Dont Exaggerate.................................................................................................175
9. Educate Your Client.....................................................................................................................175
V. Conclusion...................................................................................................................................................175

Strategies and Tips for Dealing with Dirty Litigation Tactics by Opposing...Hicks153

ness. Acknowledging that words themselves may carry only a limited meaning, courts have also held that
facial expressions, voice inflection and intonation, gestures, body language may all express a message .
Fanelli v. Centenary College, 211 F.R.D. 268, 270 (D. N.J. 2002) (citations omitted). Moreover, in the context
of abusive conduct, a videotape deposition provides the court or special master with a clearer picture of what
occurred. See, e.g., GMAC Bank, supra. As such, videotaping depositions is considered one of the best ways to
combat abusive conduct at depositions. Shartel, supra., Inside Litig.
Another option that should be considered is the appointment of a special master. Under Federal Rule
of Civil Procedure 53, a special. master appointment is the exception not the rule. Medtronic Sofamor Danek,
Inc. v. Michelson, 229 F.R.D. 550, 559 (W.D. Tenn. 2003). However, where the parties conduct prior to the
appointment of a special master demonstrates that they are unable to proceed with discovery without impartial supervision, then a special master appointment is proper. See Ruiz v. Estelle, 679 F.2d 1115, 1159-63 (5th
Cir.), modified on other grounds, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042, 75 L. Ed. 2d 795, 103
S. Ct. 1438 (1983); Gary W. v. Louisiana, 601 F.2d 240, 244-45 (5th Cir. 1979); First Iowa Hydro Elec. Coop. v.
Iowa-Illinois Gas & Elec. Co., 245 F.2d 613 (8th Cir.), cert. denied, 355 U.S. 871, 2 L. Ed. 2d 76, 78 S. Ct. 122
(1957); Harmston v. City & County of San Francisco, No. C 07-01186 SI, 2007 U.S. Dist. LEXIS 87144, at *29
(N.D. Cal., Nov. 6, 2007); In re Sunrise Sec. Litigation, 124 F.R.D. 99, 100 (E.D. Pa. 1999). See also Wright &
Miller, Federal Practice and Procedure: Civil 2605, at 790-791 (use of a special master to supervise discovery
may still be appropriate and useful in unusual cases). Indeed, [d]iscovery is an area where special masters
are frequently appointed either because the problems are complicated or the parties are recalcitrant. Natl
Assn of Radiation Survivors v. Turnage, 115 F.R.D. 543, 560-561 (N.D. Cal. 1987)(citing United States v. American Tel. & Tel. Co., 461 F. Supp. 1314, 1348-49 (D. D.C. 1978); Fisher v. Harris, Upham & Co., 61 F.R.D. 447, 449
(S.D. N.Y. 1973), appeal dismissed mem., 516 F.2d 896 (2d Cir. 1975)). Moreover, when appointing a master,
the court has the authority under Federal Rules of Civil Procedure 11 and 26(g), as well as its inherent powers, to apportion the special masters fees and costs upon the party whose abusive conduct led to the masters
appointment. Natl Assn of Radiation Survivors, 115 F.R.D. at 562.
Nonverbal cues or signals by lawyers at a deposition may be as significant as those communicated
verbally. See, generally, Paul M. Lisnak & Eric Oliver, Courtroom Power: Communication Strategies for Trial
Lawyers, Professional Education Systems, Inc. (Colorado Springs, CO) 2001. Unfortunately, lawyers nonverbal
cues or signals are generally not recorded by the court reporter or videographer. As such, if you are faced with
a Rambo lawyer who is using signals or cues at a deposition, then you need to put that inappropriate conduct
on the record in a clear and neutral way. See Maureen B. Collins, Defending the Deposition, Ill. B.J. (July 2002),
at p. 379.
Sanctions for violating Rule 30 are governed by Rule 37(a) and Rule 30(d). As for Rule 37(a), if a
deponent fails to answer a question asked under Rule 30, or provides an answer that is evasive or incomplete, then a motion to compel the deposition testimony may be filed. Fed.R.Civ.P. 37(a)(3)(B)(i) & (a)(4).
Further, upon the granting of a motion to compel, the court must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movants reasonable expenses incurred in making the motion, including attorneys
fees. Fed.R.Civ.P. 37(a)(5)(A). Sanctions under Rule 37(a)(5)(A) serve a compensatory, not punitive, purpose.
See Hutto v. Finney, 437 U.S. 678, 690 n.14, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978) (The award . . . makes the prevailing party whole for expenses caused by his opponents obstinacy.). As a result, Rule 37(a) sanctions are not
appropriate if the movant filed the motion before attempting in good faith to obtain the ... discovery without
court action, the opposing partys nondisclosure ... was substantially justified, or other circumstances make an
award of expenses unjust. GMAC Bank, 248 F.R.D. at 193 (citing Fed.R.Civ.P. 37(a)(5)(A)(i)-(iii)).
Strategies and Tips for Dealing with Dirty Litigation Tactics by Opposing...Hicks171

In contrast, if a persons conduct is so egregious that it impedes, delays, or frustrates the fair examination of the deponent, then Rule 30(d) empowers the court to impose an appropriate sanction on that
person, including the reasonable expenses and attorneys fees incurred by any party. Fed.R.Civ.P. 30(d)
(2). Rule 30(d)(2) does not define appropriate sanction or reasonable expenses and attorneys fees. However, courts have found that an award of costs and fees under Rule 30(d)(2) may be used to compensate the
party aggrieved by the frustration of the deposition. GMAC Bank, 248 F.R.D. at 193; Plump v. Kraft Foods N.
Am., Inc., No. 02-7754, 2003 U.S. Dist. LEXIS 23112, 2003 WL 23019166, at *1 (N.D. Ill. Dec. 23, 2003) ([C]
osts and attorneys fees awarded are those incurred as a result of the frustration of fair deposition examination. Thus, time that may have been appropriately spent in order to represent the client might not necessarily
qualify as time that can be reimbursed as a sanction. (emphasis added)). Accordingly, using their discretion,
courts have fashioned a variety of remedies under Rule 30(d)(2). See, e.g., Biovail Labs., Inc. v. Anchen Pharm.,
Inc., 233 F.R.D. 648, 654 (C.D. Cal. 2006) (requiring payment of costs and attorneys fees incurred in preparing this discovery motion, as well as . . . costs incurred in the first deposition and also costs attendant to
resetting Dr. Seths deposition, including travel costs for defendants counsel); Plump, 2003 U.S. Dist. LEXIS
23112, 2003 WL 23019166, at *1 (requiring plaintiff to pay the costs and fees incurred by defendant . . . in
preparing, filing and arguing [the] Motion for Sanctions . . . and in taking the second session of [plaintiff s]
deposition); Morales v. Zondo, Inc., 204 F.R.D. 50, 57-58 (S.D.N.Y. 2001) (requiring payment of the transcript
cost of [the] deposition, [counsel]s normal hourly rate multiplied by the number of hours during which he
questioned [the deponent], and $1,500 to the Clerk of the Court.).
Under Rule 37(a)(5)(A), the attorney advising the party to either not answer a question or provide an
evasive or incomplete answer can be subject to sanctions. Fed.R.Civ.P. 37(a)(5)(A); GMAC Bank, 248 F.R.D. at
194. In addition, an attorney may be sanctioned under Rule 30(d)(2) for engaging in conduct that impedes,
delays, or frustrates the fair examination of the deponent. GMAC Bank, 248 F.R.D. at 194. See also In re BWP
Gas, 2006 Bankr. LEXIS 2800, at *2-4 (Bankr. E.D. Pa. 2006) (noting that Rule 30(d)(2) can apply to any . . .
person involved in the deposition); Redwood v. Dobson, 476 F.3d 462, 469-70 (7th Cir. 2007) (applying Rule
30(d)(2) sanctions to an attorney for failing to adjourn a futile deposition and improperly instructing his client not to respond to questions). The imposition of sanctions under Rules 30(d)(2) and 37(a)(5)(A) does not
require a finding of bad faith on the part of counsel. GMAC, 248 F.R.D. at 196 (rejecting the notion of a bad
faith requirement under Rule 37(a)(5)(A)); Sicurelli v. Jeneric/Pentron, Inc., No. 03-4934, 2005 U.S. Dist.
LEXIS 42227 (E.D. N.Y. Dec. 30, 2005) ([F]or purposes of Rule [30(d)(2)], a clear showing of bad faith on
the part of the attorney against whom sanctions are sought is not required. Instead, the imposition of sanctions under Rule [30(d)(2)] requires only that the attorneys conduct frustrated the fair examination of the
deponent.); Pucket v. Hot Springs Sch. Dist. No. 23-2, 239 F.R.D. 572, 588 (D. S.D. 2006) (same)). Moreover,
sanctions against counsel may be warranted for engaging in improper deposition conduct, as well as failing to
prevent the deponent from doing the same. GMAC, 248 F.R.D. at 195-199.

IV. Practical Tips on How to Deal with a Rambo Litigator


A. The Lack of the Courts Tolerance with Dirty Litigation Tricks
Over the years, courts have become more vocal in expressing their disapproval of incivility among counsel. For example, the Honorable Jose A. Gonzalez, Jr., United States District Court for the Southern District of
Florida, made the following statement in his opinion addressing certain discovery motions that were before him:
In closing, the primary purpose of the Rules of Civil Procedure is to secure the just, speedy, and
inexpensive determination of every action. Fed.R.Civ.P. 1. The constant sniping and bickering
172Employment and Labor LawMay 2013

between the instant parties have operated to draw out this action and increase the expense at
every turn, effectively defeating the very purpose for which we have the Rules and a liberal discovery process.
The Court has previously noted that there is no love loss between these parties. That said, the
Court refuses to believe that it must actually issue an order for the parties to play nice. The Court
understands that the parties are competitors in their field. Nonetheless, if counsel for both parties will attempt to inject a little more civility into this civil action, perhaps the litigation will
flow more smoothly and expeditiously toward resolution.
Quantachrome Corp., 189 F.R.D. at 701-702. Further, to ensure that counsel practiced civility, Judge Gonzalez
included in the order the following:
At the December 2, 1999, Status/Scheduling Conference, counsel for Quantachrome and counsel for Micromeritics are ORDERED to commence the conference by smiling and bidding each
other Good Morning in open court.
Id. at 702.
B. Practical Tips
Obviously, counsel should not have to be ordered by a court to practice civility. However, what
should one do when faced with a Rambo litigator? Here are nine tips to keep in mind when dealing with a
Rambo lawyer.
1. Know Your Case
As one commentator has noted:
Incivility often masks a lawyers insecurity or lack of proficiency. For example, if ones witnesses
are adequately prepared to testify, there is no need in a deposition to coach them improperly or
obstruct them from answering unobjectionable questions.
Green, supra, 24 No. 4 Litig. at 48-49. As such, the best way to deal with a Rambo litigator is to know the facts
of your case and the controlling legal principles. Also, you should know the relevant documents and understand what witnesses will say under oath. That way, when you are confronted with a Rambo litigator, you will
not be tempted to mask your own insecurities by escalating the level of incivility.
2. Stay Focused and Remain Calm
Many litigators use Rambo tactics to get their opposing counsel distracted, frustrated or angry, so
that their opponents fail to uncover all relevant information. Consequently, it is always important to remain
calm and stay focused when dealing with a Rambo litigator. If opposing counsel is not cooperating in the production of documents or other discovery that you believe is relevant, dont get into unnecessary arguments
with opposing counsel. Instead, find other ways to gather the information, such as from third-parties and witnesses, and stay focused on whats important: that is, discovering all relevant information and witnesses.
3. Do Not Use Rambo Tactics
A corollary to staying focused and calm is avoid responding with or otherwise using Rambo tactics.
Naturally, when someone insults you, you are inclined to insult them back. Similarly, when opposing counsel
yells at you, you feel compelled to do the same. However, responding with those tactics is not the best way to
handle a Rambo lawyer. Instead, by returning the insult or getting into a shouting match, you are engaging in
the same tactics as the Rambo lawyer and are likely to be sanctioned for such conduct. See, e.g., Gonzales, 733
Strategies and Tips for Dealing with Dirty Litigation Tactics by Opposing...Hicks173

N.E.2d at 587 (after one attorney called opposing counsel a piece of shit, and opposing counsel responded by
calling that attorney a total asshole, both were publicly reprimanded for their unprofessional conduct before
a magistrate judge).
4. Dont Turn Every Dispute into a Battle
In civil litigation, every lawyer has numerous tasks that must be completed in order to prove ones
case and meet case management deadlines and client demands. However, contrary to the mind-set of a
Rambo lawyer, not every extension request or location of a deposition needs to turn into a major battle. In
other words, there are some issues that should never become a dispute. Pick your battles carefully and dont
turn every issue into a dispute that must be resolved by the court.
5. Know Your Judge and His or Her Rules and Procedures
In addition to the federal and state civil procedure rules, many courts and judges have their own
rules, procedures and preferences that must be followed, especially with regard to discovery and other pretrial matters. Indeed, many judges have published their own standard case management orders which adopt
the same or more restrictive discovery limitations that appear in the federal and state civil procedure rules.
It is important that you know what the particular requirements, procedures and preferences are of the court
and judge where your litigation matter is pending, so that you can tailor the presentation of your issues and
not have your motions to compel denied summarily. Knowing and following the judges rules, procedures and
preferences will place you in a better position with the court and will more often than not defeat many of the
tactics employed by a Rambo litigator.
6. Maintain a Rambo Litigation File
When dealing with a Rambo lawyer, you should document all communications in writing. This is not
to say that you should insult or make ad hominem attacks against opposing counsel. Instead, you should routinely confirm in writing your communications with a Rambo litigator, including any abusive or inappropriate language or conduct that he or she has displayed, and respectfully ask that the Rambo litigator stop such
behavior. In extreme cases where the Rambo litigator insists on continuing to engage in such inappropriate
conduct, you may need to limit your communications with opposing counsel outside the courtroom to strictly
written ones. In either case, documenting the Rambo lawyers tactics is important, so that if you need to seek
the assistance of the court or others, youll have something more than your word of what transpired. See Jean
M. Cary, supra., 25 Hofstra L. Rev. at 595-96 (suggests maintaining a Rambo file which could be used at fee
hearings to impose sanctions and penalties).
7. Involve the Court and the Disciplinary Committee
There may come times when youll need to involve the judge or the court to address certain Rambo
litigation tactics. However, be judicious in filing motions with the court. Not every Rambo act should be
resolved by way of a motion to compel or for sanction. Moreover, repeatedly filing motions can, in and of
itself, constitute Rambo litigation tactics. In extreme cases, you may need to report the Rambo lawyer to your
local disciplinary committee. See Cary, supra., 25 Hofstra L. Rev. at 596 (Lawyers must stop their passivity about Rambo depositions. Not only should they report name-calling, demeaning gestures, and personal
threats occurring during depositions to judges and bar disciplinary committees, but they should create an
atmosphere in their firm where young associates will feel comfortable to complain about their mistreatment
by opposing attorneys in depositions.).

174Employment and Labor LawMay 2013

8. Be Honest and Dont Exaggerate


Whenever you present a dispute or issue to the judge or court, you must stay true to the facts and
never exaggerate. Otherwise, youll never obtain the courts trust. Leave it up to the Rambo litigate to engage
in exaggeration and make ad hominem attacks against you and others. In the end, you must always remain
civil and professional and let the Rambo litigators own tactics expose his or her dishonesty and incivility.
9. Educate Your Client
Often times, as lawyers, we think about engaging in Rambo civil litigation tactics, and many times we
have clients who insist that we use such tactics as part of our overall litigation strategy. However, it is important for you to educate your client as to your opposing counsels Rambo tactics and explain why those tactics
will not impede your ability to zealously represent the clients interests. Also, you should explain to your client why ethically you will not be responding in kind to such tactics, including the fact that you and your client
may face sanctions or other discipline. Additionally, you should advise your client that Rambo tactics merely
increase the cost of litigation and generally result in unfavorable consequences for those attorneys and parties who use them. See OConnor, supra., 76 Wash. U. L. Q. at 9; Kaye, supra., 67 Fordham L. Rev. at 8. If, after
such consultation, your client still insists that you use Rambo tactics, you have to be prepared to terminate the
attorney-client relationship. See Model Rule of Professional Conduct 1.16(b)(4) & (7) ((b) Except as stated
in paragraph (c), a lawyer may withdraw from representing a client if: (4) the client insists upon
taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; or (7) other good cause for withdrawal exists.). In the end, the more your client is educated on the risks and other negative consequences of using Rambo tactics and why your opposing counsels
use of such tactics is not going to impede your ability to zealously represent the clients interests, the less likely
youre going to feel compelled to engage in Rambo tactics yourself.

V. Conclusion
Although many of us aspire to be Atticus Finch, an equal number of lawyers believe that being a
Rambo lawyer is equally important, especially when representing clients who are perceived to be at a disadvantage to larger, well-financed clients such as corporations and insurance companies. However, with more
judges willing to discipline counsel and parties for engaging in unprofessional conduct and with clients realizing that engaging Rambo lawyers to scorch the earth can be quite expensive and unprofitable, the rise of
Rambo litigators may have peaked. However, the next time you are forced to deal with a Rambo lawyer, keep
this article in mind and you will definitely come out ahead.

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5/7/2014

Be Nice: More States Are Treating Incivility as a Possible Ethics Violation

Ethics

Be Nice: More States Are Treating Incivility as a Possible Ethics Violation


Posted Apr 1, 2012 3:20 AM CDT
By G. M. Filisko

Illustration by Stuart Bradford


Incivility among lawyers is not a new concern. But as the general tone of public discourse in the United States becomes
more heated, the issue of civilityor lack thereofwithin the legal profession appears to be moving to the front burner.
Civility used to be inherent in public discourse. Where did we go wrong? said then-ABA President Stephen N. Zack in a
speech during the 2011 ABA Annual Meeting in Toronto. As lawyers, we must honor civility, said Zack, the
administrative partner at Boies, Schiller & Flexner in Miami. Words matter. How we treat others matters.
The ABAs policymaking House of Delegates also endorsed (PDF) a renewed commitment to civility during last years
annual meeting, but it wasnt the first time the House has addressed the issue. In 1995, the House adopted a resolution
(PDF) encouraging bar associations and courts to adopt standards of civility, courtesy and conduct as aspirational goals
to promote professionalism of lawyers and judges.
But aspirations may not be enough in an increasingly competitive environment that doesnt always seem to reward
courtesy and cooperation.
There are more pleadings, and theres more discovery, which provides more opportunities for attorneys to lose their cool
and snap, says Jimmie L. McMillian, a partner at Barnes & Thornburg in Indianapolis who was a panelist for a recent
ABA-sponsored CLE webinar about the impact of lawyer incivility on clients. Lawyers are operating under more pressure
in terms of billable hours, getting clients and being a lawyer whos different. TV also plays a role. Just as clients are
susceptible to thinking their lawyer has to act like that, you have lawyers who feel they have to performand I do use the
word performlike that.
Moreover, there is no clear consensus on what defines incivility. Brian S. Heslin, another panelist on the program, draws
the line at personal attacks. Youre not crossing the line when youre belittling the other sides position or facts, says
Heslin, a member of Moore & Van Allen in Charlotte, N.C. But when that type of communication is directed at the
individuals themselvessay their training, personality, color, ethnicity or agethats when we saw people cross the line.
Lawyers engaging in uncivil behavior run the risk of court sanctions, but in a growing number of jurisdictions, incivility also
may land them in front of their state disciplinary bodies on charges of violating ethics rules.
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Be Nice: More States Are Treating Incivility as a Possible Ethics Violation

The ABA Model Rules of Professional Conduct dont specifically address civility. Nevertheless, a lawyers alleged incivility
may implicate the competence provisions in Model Rule 1.1 or, more often, Rule 8.4, which contains broad provisions
covering misconductincluding dishonesty, fraud, deceit or misrepresentationand, as stated in Rule 8.4(d), conduct
that is prejudicial to the administration of justice.
Rule 8.4(d) is where most people are likely to land, says Wallace E. Gene Shipp Jr., bar counsel at the District of
Columbia Bar. Lets say youre in a deposition and behave badly by throwing papers at your opponent or causing
objections because you treat the witness so badly. That impacts on the administration of justice.
BE CIVILOR ELSE
The District of Columbia Bar has voluntary rules of civility for lawyers, but some states are addressing the problem with
more forceful measures.
Geoffrey Nels Fiegerfamous for his defense of Dr. Jack Kevorkian on murder charges stemming from an assisted
suicide casecame up against Michigans mandatory civility rules after lambasting several state appellate judges in
conjunction with a malpractice case (that did not involve Kevorkian). On Aug. 23, 1999, during a broadcast of his popular
radio show three days after a three-judge panel of the Michigan Court of Appeals overturned a $15 million jury verdict for
his client, Fieger said, I declare war on you, identifying the judges by name, according to a Jan. 20, 2009, opinion in the
case by the 6th U.S. Circuit Court of Appeals at Cincinnati.
In a broadcast two days later, Fieger upped the ante, calling them three jackass court of appeals judges. When
someone else on the broadcast mentioned the possibility of innuendo, Fieger said, I know the only thing thats in their
endo should be a large, you know, plunger about the size of, you know, my fist. He also compared them to Adolf Hitler
and other Nazis.
The state Attorney Grievance Commission filed a complaint alleging that Fieger, who is lead attorney at Fieger Law in
Southfield, Mich., violated Michigan Rule of Professional Conduct 3.5(d), which prohibits lawyers from engaging in
undignified or discourteous conduct toward a tribunal; and Rule 6.5(a), which states, A lawyer shall treat with courtesy
and respect all persons involved in the legal process.
Fieger stipulated to a disciplinary reprimand while reserving his right to bring a separate challenge to the rules on First
Amendment grounds. In that challenge, a federal district court decided that the rules were unconstitutionally broad and
vague, and enjoined their enforcement. But the 6th Circuit vacated that decision, holding that Fieger lacked standing to
bring his challenge.
Partly because of MRPC 6.5, Michigan has had a string of cases involving lawyers conduct or statements toward other
lawyers in the hallway of a courtroom, in a courtroom, in depositions, or against security officers as lawyers are going
through the metal detector, says John F. Van Bolt, executive director and general counsel for the Michigan Attorney
Discipline Board.
If theres actual physical touching, thats one thing. We had a case in which the lawyer, in the course of words with
another attorney at a deposition, grabbed the attorneys tie. One witness said he yanked it violently, and another said he
touched it briefly. In those cases, there tends to be a finding of misconduct. But if its a single incident without physical
contact, the sanction tends to be not too severe.
However, even Michigan disciplinary hearing panels disagree on how to address alleged incivility. If theres only been
pure speechsomeone saying, Youre an asshole or Youre a lying bastard in a private phone conversationat least
one hearing panel said that, while it didnt condone the behavior, it declined to be the language police, Van Bolt says.
THE PERSONAL APPROACH
Florida recently changed its oath of admission to include a duty of civility in oral and written communications, says John
T. Berry, director of the legal division of the Florida Bar. But its complaint against one attorney, decided by the Florida
Supreme Court in 2010, alleged that the attorneys conduct violated the prohibition against conduct prejudicial to the
administration of justice in the state ethics rules for lawyers.
The incident giving rise in the complaint against Robert J. Ratiner is described in the supreme court opinion (PDF). During
a deposition in 2007, Ratiners opposing counsel tried to affix an exhibit sticker on his laptop computer. Ratiner briefly
touched his opponents hand and then attempted to run around the table toward him. The deponent said she was very
scared by Ratiners behavior, and the court reporter said, I cant work like this! Ratiners own consultant tried to calm
him down, telling him to take a Xanax.
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Be Nice: More States Are Treating Incivility as a Possible Ethics Violation

While finding that Ratiners behavior during the laptop incident was unacceptable and unbecoming of any member of the
bar, the Florida Supreme Court declined to accept the referees recommendation that he be disbarred or have his license
suspended for two years.
Instead, the court imposed a 60-day suspension and a two-year probationary period, required him to undergo mental
health counseling, and directed him to bring bar-approved co-counsel to all depositions during the probationary period or
arrange to have them videotaped.
A growing number of state supreme courts and bar associations are joining states like Florida and Michigan in taking up
the civility mantle. The Pennsylvania Supreme Court and the states bar association both adopted civility codes. And the
Utah Supreme Court implemented standards of professionalism and civility in 2003, according to the ABA Center for
Professional Responsibility.
But until court rules and ethics codes catch up with the problem, some practitioners say a personal approach is the best
way to counter incivility.
Charles R. Gallagher III, the managing partner at Gallagher & Associates Law Firm in St. Petersburg, Fla., uses food to
soothe opposing counsel. I send a letter asking to break bread. Ill say, I dont know how we got off on this path, but I
apologize and I want to start anew. Often, theyll say, I must have had a bad day when we started. I apologize, too, and
lets break bread. Others say, Go to hell.
When he made the gesture to one opposing counsel, Gallagher says, she responded, Youve got a shit case, I have no
respect for you, and youve got to be prepared for the ire of me and my firm. To this day, the case has been rancorous.
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ABA Section of Litigation 2012 Section Annual Conference April 1820, 2012:
Deposition Practice in Complex Cases: The Good, The Bad, and The Ugly

But The Examination Still Proceeds:


A Primer On Surviving the Difficult
Deposition

C. Malcolm Cochran, IV
Richards, Layton & Finger, P.A.
Wilmington, Delaware 1

Some of the more important lessons a litigator can learn are lessons learned the hard way. These include
the frustrating hours wasted in depositions where opposing lawyers and witnesses skilled in the art of
obfuscation hold court. Speaking objections, verbal assaults on the examining lawyer, evasive nonanswers, comments suggesting answers, repeated consultations among defending lawyer and witness
these are just some of the time-honored tactics employed in the name of zealous advocacy. They are
designed to throw even the most determined legal blood hound off the scent.

The views expressed herein are those of author and are not necessarily shared by Richards,
Layton & Finger, P.A. or its clients. The author wishes to thank Jason J. Rawnsley and Jaclyn C. Levy
for their assistance.

Too often, the tactics work. The examiner takes the bait and argues for pages on end over the speaking
objection. She responds in kind to the verbal assault (I sure told him). She is stumped by the evasive
non-answer, or fails to follow up. The suggestive comments or repeated consultations between witness
and counsel are simply ignored.
The result is often a transcript filled with snappy but useless colloquy, and little else.
One of the most useful legal education programs I ever attended was taught by David Malone, in which
he outlined a system for surviving the difficult deposition. 2 The approach is civil and straightforward. I
have used it to great effect for more than 20 years and can attest: It works. The essence of the approach
is summed up in the saying less is more. It relies not on fancy arguments, or on cases or rules but
instead on a keen understanding of the purpose of a deposition, and on a healthy dose of common sense.
This brief article first reviews some of the rules that should be top of mind when encountering the
difficult witness or opponent. A few cases are then considered, both for a sense of how courts react and
to set the stage for the introduction of a more practical approach. Davids common sense system, as
morphed by application (or as otherwise distorted by me) is then discussed. My best advice is to pay
close attention to the latter portion of this article, where Davids approach is summarized.

A.

Some Pertinent Rules.

1.

But the Examination Still Proceeds.

In the federal courts, the principal rule governing depositions by oral examination is Federal Rule of Civil
Procedure 30. We each may have our favorite part of the rule, but mine is the following snippet that
appears at subsection (c)(2), which discusses objections: . . . but the examination still proceeds . . . .
That phrase sums up the entire process. It reminds us that we are there not to make eloquent argument,
nor to ensure that our opponent rues the day he opened his mouth. We are there, simply, to ask questions
and take answers. No matter what, the examination still proceeds.
It is important to note that Rule 30(c)(2) contains no requirement that the examiner actually respond, in
substance or in any other way, to an objection, which must be stated concisely in a nonargumentative
and nonsuggestive manner. Fed. R. Civ. P. 30(c)(2). It also must not be forgotten that the defending
lawyer is not evil simply because he objects. Indeed, he often is required to object, lest he waive the
objection. 3 Remember, the purpose of a proper objection is generally to put the examiner on notice that
the defender sees some problem with the question that could be cured at the time of examination, and that
he is reserving the right to argue later that the question and the answer should be stricken. For this the

David M. Malone has taught hundreds of advanced and basic trial advocacy, expert witness,
deposition and other trial-related programs, for the National Institute for Trial Advocacy, the American
Bar Association, the State Department, private law firms, corporations and others. He is an author of The
Effective Deposition, a widely used text on deposition practice and procedure. Malone, Hoffman,
Bocchino, The Effective Deposition, Revised 3d Ed. (NITA 2007). He is currently president of Trial Run
Inc., a trial training and consulting firm.
3

An objection at the time of the examinationwhether to evidence, to a partys conduct, to the


officers qualifications, to the manner of taking the deposition, or to any other aspect of the deposition
must be noted on the record, but the examination still proceeds; the testimony is taken subject to any
objection. FED. R. CIV. P. 30(c)(2).
2

examiner should be thankful, and should give the non-argumentative and non-suggestive objection due
consideration, before deciding to ignore it.
So save the argument. There is no requirement that you make it at the deposition. Consider amending
your question and then rephrase, or just ask the witness to answer, please. If this leaves you feeling
insecure, then, at most, say something like we disagree. You may answer the question. Remember, in
all events, the examination still proceeds . . . . Repeat this mantra to yourself the next time someone
challenges you to verbal combat in the deposition room. You will be back on track in no time.

2.

As It Would At Trial.

Federal Rule of Civil Procedure 30(c)(1) sets the stage for the manner in which a deposition should be
conducted: The examination and cross-examination of a deponent proceed as they would at trial under
the Federal Rules of Evidence, except Rules 103 and 615. (emphasis added). How often do we hear, at
trial, long speaking objections designed to suggest answers to a witness (or concepts to a jury)? In what
courtroom do judges tolerate (for long) verbal assaults by the lawyers on one another, or abusive conduct
by a witness? These things are generally well out of bounds in most well run courtrooms.
Thus, if you would not do it (or get away with it) at trial, do not do it in a deposition. 4 And if somebody
does it to you, use this portion of the rule (and this argument) in response, on what should be the rare
occasions on which you seek protection from a court. In my experience, judges (who generally hate these
disputes) quickly latch on to the point. See LM Ins. Corp. v. ACEO, Inc., 275 F.R.D. 490, 491 (N.D. Ill.
2011) (Because a deposition generally proceeds as at trial, Rule 30(c)(1), Federal Rules of Civil
Procedure, courts have uniformly held that once a deposition starts, counsel has no right to confer during
the deposition, with perhaps one narrow exception, which is not applicable here.); GMAC Bank v. HTFC
Corp., 248 F.R.D. 182, 186 (E.D. Pa. 2008) (granting sanctions against defendant for: 1) engaging in
hostile, uncivil, and vulgar conduct; 2) impeding, delaying, and frustrating fair examination; and 3) failing
to answer and providing intentionally evasive answers to deposition questions); Landers v. Kevin Gros
Offshore, L.L.C., 2009 WL 2046587, at *4 (E.D. La. July 13, 2009) (The record demonstrates that
counsel . . . repeatedly failed to conduct his examination . . . as he would at the trial and denied [the
witness] the same rights and privileges due a witness testifying in court at a trial. Sanctions will be
imposed.); Luangisa v. Interface Operations, 2011 WL 6029880, at *6 (D. Nev. Dec. 5, 2011)
(Examination and cross-examination of witnesses during depositions should proceed as it does at trial.).
Attention should also be paid to the exceptions to the as at trial rule: The examination proceeds as it
would at trial under the Federal Rules of Evidence, except Rules 103 and 615. (emphasis added). 5 Fed.
R. Civ. P. 30(c)(1). Rule 103 is entitled Rulings on Evidence and addresses how a point is preserved
4

Never forget, someday a judge may read the transcript. Courts sometimes remind lawyers of
this and in more than one case have addressed conduct viewed as abusive, sua sponte. See Paramount
Commcns Inc. v. QVC Network Inc., 637 A.2d 34, 52 n.23 (Del. 1994) (We raise this matter sua sponte
as part of our exclusive supervisory responsibility to regulate and enforce appropriate conduct of lawyers
appearing in Delaware proceedings.); In re Fuqua Indus., Inc. Sholder Litig., 752 A.2d 126, 135 (Del.
Ch. 1999) (The deposition transcript speaks for itself. The examples excerpted above are merely a
sampling of numerous speaking objections and off-the-record consultations employed by him during the
course of the deposition.).
5

Federal Rule of Evidence 615 governs the exclusion of witnesses (sequestration) at trial.

when an objection is raised and ruled upon at trial. But objections noted on the record during depositions
are preserved and not ruled upon unless or until raised at trial. Suspending the application of Federal
Rule of Evidence 103 in the deposition context thus serves to reaffirm that no response to the speaking (or
other) objection is necessary. Since there is no judge present (absent a mid-deposition call to the court)
there can be no ruling, so (again) save the argument. And if you do call the court, the judge will likely
not care to listen while the reporter reads back the pages of pointless colloquy.

3.

Objections Must Be Nonargumentative and Nonsuggestive.

As mentioned earlier, the Rules require that objections raised during a deposition be nonargumentative
and nonsuggestive. FED. R. CIV. P. 30(c)(2). The two terms cannot be found in most spell check
programs, but they are meant to convey the following: The defending lawyer is entitled to preserve the
objection on the record, but he is not entitled to get in your way. Nonargumentative means just that
no argument. Nonsuggestive means that he cannot suggest an answer to the witness. Courts today are
generally on board with these concepts. See Specht v. Google, Inc., 268 F.R.D. 596, 598 (N.D. Ill. 2010)
(Objections that are argumentative or that suggest an answer to a witness are called speaking
objections and are improper under Rule 30(c)(2).); Amari Co. v. Burgess, 2009 WL 1269704, at *1
(N.D. Ill. Apr. 30, 2009) (The gist of this rule is simple: unless the attorney claims the question calls for
privileged information, the attorney must only state his objection and allow the client to answer.); JSR
Micro, Inc. v. QBE Ins. Corp., 2010 WL 1338152, at *10 (N.D. Cal. Apr. 5, 2010) (Rule 30(c)(2) makes
very plain that these objections were not a proper basis for an instruction not to answer. Nor were they
stated in a nonargumentative and nonsuggestive manner.).
The form in which objections must be stated varies somewhat from court to court. Many courts limit
defending parties to simple, declarative statements, such as objection, form unless the examiner asks for
the basis. See Turner v. Glock, Inc., 2004 WL 5511620, at *1 (E.D. Tex. Mar. 29, 2004) (As stated in
Local Rule CV30 . . . objections to questions during an oral deposition must be limited to Objection,
leading and Objection, form.); Tuerkes-Beckers, Inc. v. New Castle Assocs., 158 F.R.D. 573, 575 (D.
Del. 1993) (Objections as to the form of the question should be limited to the words Objection, form.
All other objections should be limited to the word Objection and a brief identification of the ground,
preferably in no more than three words.). Some courts permit a one- or two-word explanation of the
basis, at the time of form objection, such as: Objection, compound. See Abu Dhabi Commercial Bank
v. Morgan Stanley & Co., 2011 WL 4526141, at *8 (S.D.N.Y. Sept. 21, 2011) (Objections should
generally be limited to the statement objection as to form and the basis for such objection, i.e.,
compound question . . . . (quoting the Honorable Shira Scheindlins Suggested Rule of Discovery
Practice)).
The question, however, is not what the rules say since the rules are available for all to read. The question
is how does one enforce these limits, while still filling the maximum number of transcript pages with
meaty testimony and avoiding unnecessary colloquy? This is where the system taught by Dave Malone
comes in, as reviewed in Section C of this article.

4.

Impedes, Delays or Frustrates the Fair Examination.

A brief word about Rule 30(d)(2) is in order. When a person (note that this includes the nonparty
witness) impedes, delays, or frustrates the fair examination of the deponent the court is expressly
authorized by Federal Rule of Civil Procedure 30(d)(2) to impose an appropriate sanctionincluding the
reasonable expenses and attorneys fees incurred by any party . . . . So the remedy is there, if you truly
need it. But in most cases, if you get to this point, youve essentially already lost. You have shown your
hand, the witness has stopped talking and you have lost time. Your ground assault has ground to a halt.
Worse, you will be forced to miss yet another of your daughters dance recitals while you spend yet
4

another day dealing with this discourteous, uncivil [fill in the blank]. The free flow of information will
have ceased.

5.

Why Depositions Are So Important.

Finally, before we turn to the cases, a few thoughts about why depositions are so important in the
resolution of civil disputes. We know that the vast majority of civil cases never make it to trial. 6
Depositions are the evidentiary basis for the resolution of most of these disputes. See GMAC Bank, 248
F.R.D. at 185. The drafters of the rules apparently recognized this, as the rules that apply to depositions
establish a structure that is intended to encourage the free flow of information. See Fed. R. Civ. P. 30.
Anything that promotes the free flow of information is generally viewed as good. Anything that impedes
that information flow is generally viewed as bad. See, e.g., Fed. R. Civ. P. 30(d) advisory committees
note (1993) (Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy
objections and colloquy, often suggesting how the deponent should respond.); Luangisa v. Interface
Operations, 2011 WL 6029880, at *7 (D. Nev. Dec. 5, 2011) (recognizing widespread judicial criticism
of Rambo litigation tactics designed to interfere with or prevent the elicitation of meaningful testimony
and disrupt the orderly flow of a deposition:); Phillips v. Mfrs. Hanover Trust Co., 1994 WL 116078, at
*3 (S.D.N.Y. Mar. 29, 1994) (stating that repeated objections during deposition clearly did hamper the
free flow of the deposition). 7
In short, the depositionwhen used properlyis (and was designed to be) the most powerful truthseeking tool in the civil litigators toolbox. It allows for live questioning and follow up. Fed R. Civ. P.
30(c). The permissible scope is much broader than would be permitted at trial. Fed. R. Civ. P. 26(b)(1)
(allowing discovery of relevant, inadmissible information so long as it is reasonably calculated to lead to
the discovery of admissible evidence.). Deposition testimony is unfilteredyour opponent cannot
help the witness or (if you follow the rules) otherwise interfere. If you ask, you are entitled (when
deposing an entity) to a witness with knowledge. A deposition lets you test drive the car: You get to
explore new areas and theories, to try lines of cross that you might never try at trial, or to go
unpluggedcompletely off the beaten path in the search for truth, to the beat of your own drummer (or
acoustic guitar), so long as you stay within the wide swath of legitimate discovery permitted by the
Federal Rules.
Witnesses give wonderful gifts to examiners who do this well.

B.

Some Cases.

So, lets look at a few of the train wrecks.

It is estimated that more than 98% of all civil cases filed in the federal courts are settled or
otherwise disposed of prior to trial. GMAC Bank, 248 F.R.D. at 185. As stated in a seminal case on
deposition practice, Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993): The significance of
depositions has grown geometrically over the years . . . . The pre trial tail now wags the trial dog.
7

Exceptions to this include, of course, valid objections and instructions not to answer on the basis
of attorney client or other valid, applicable privileges.
5

1.

Paramount: Deposition Misconduct as an Ethical Issue.

A case from Delaware shows what can happen, even when the examining lawyer (hereinafter EL) does
not complain about the conduct of the difficult defending lawyer (hereinafter DL). 8 In Paramount
Communications Inc. v. QVC Network Inc., 637 A.2d 34 (Del. 1994), the Delaware Supreme Court
considered an interlocutory appeal taken during expedited litigation arising from a contest for control of
Paramount Communications, Inc. This sort of litigation is bone-crushing. The lawyers worked day and
night for weeks. Numerous depositions were quickly scheduled and held. The appendix filed in the
Delaware Supreme Court totaled 7521 pagessome 15 volumesmuch of which consisted of deposition
transcripts.
Buried in that massive record was a bit of colloquy, captured on the transcript of the deposition of
Paramount (through one of its directors), that caught the eye of a Delaware Supreme Court Justice. The
result was the now-famous Addendum to the courts opinion, in which the court sua sponte raised the
subject of professionalism in deposition practice, both in Delaware and throughout the nation. The
Courts Addendum described the exchange as [o]ne . . . worthy of special note as . . . a lesson of
conduct not to be tolerated or repeated. Id. at 52. The excerpt is repeated verbatim, in the courts
Addendum. Portions relevant to this article are repeated here:
Q:

(By [EL . . .]) Okay. Do you have any idea why Mr. [X] was calling that material
to your attention?
DL:
Dont answer that. How would he know what was going on in Mr. [X]s mind?
Dont answer it.
Go on to your next question.
EL:
No, Joe
DL:
Hes not going to answer that. Certify it. Im going to shut it down if you dont
go to your next question.
EL:
No. Joe, Joe
DL:
Dont Joe me, asshole. You can ask some questions, but get off of that. Im
tired of you. You could gag a maggot off a meat wagon. Now, weve helped you
every way we can.
EL:
Lets just take it easy.
DL:
No, were not going to take it easy. Get done with this.
EL:
We will go on to the next question.
DL:
Do it now.
EL:
We will go on to the next question. Were not trying to excite anyone.
DL:
Come on. Quit talking. Ask the question. Nobody wants to socialize with you.
EL:
Im not trying to socialize. Well go on to another question. Were continuing
the deposition.
DL:
Well, go on and shut up.
EL:
Are you finished? . . .
*
*
*
DL:
I may be and you may be. Now, you want to sit here and talk to me, fine. This
deposition is going to be over with. . . .
EL:
Are you finished?
WITNESS:
Come on, Mr. [EL], move it.
EL:
I dont need this kind of abuse.
8

The conduct at issue in these cases and its treatment by the courts, are important to this article.
The names of the lawyers and witnesses are not, and so are replaced by EL, DL and Witness.
6

WITNESS:

Then just ask the next question. . . .


*

DL:

You understand me? Dont talk to this witness except by question. Did you hear
me?

Id. at 5354.
In addressing the conduct, the Delaware court characterized the matter as an ethical issue, though the DL
was from another state, not admitted in Delaware (pro hac vice or otherwise), and thus beyond the power
of the court to discipline. Nonetheless, the court analyzed the conduct under Delawares disciplinary
rules and suggested that in similar cases the use of the trial courts inherent summary contempt powers
may be appropriate. Id. at 55.
All well and good, but none of this helped the examining lawyer fill transcript pages with meaty
testimony from a willing witness. Particularly in an expedited case, where there simply was not time to
interrupt the deposition, present a motion to the court and then redepose the witness, the remedies
suggested in the Courts Addendum were inadequate to address the immediate injury to the examining
lawyers client. So whats the poor EL to do?

2.

Serrano: The Improper Speaking Objection[s].

What is, and is not, an improper speaking objection was recently the subject of a thoughtful opinion by
a United States Magistrate Judge, in Cincinnati Insurance Co. v. Serrano, 2012 WL 28071 (D. Kan. Jan.
5, 2012). 9 In Serrano, the examining lawyer sought an order directing two defending lawyers to
discontinue their use of interruptions and speaking objections. Id. at *1. The DLs denied the
allegations of improper conduct, but one sought instruction from the Court on how to properly preserve a
form objection under [the Courts guidelines, and the Federal Rules]. Id. The deposition colloquy is
quoted extensively in the opinion, including the following excerpts:
EL:

If you were told . . . that the Serranos would accept a hundred thousand dollars
of policy limits to settle their claims against your son Derek as a result of the
accident, would you have let Cincinnati Insurance Company know that?
DL 1: Objection. Calls for speculation on the part of the witness since Cincinnati never
offered the money. But if youre guessing, if you know.
EL:
And just so were clear. This is the first deposition that youve attended in this
litigation, Mr. [DL 1], but the deposition guidelines call for objecting to form
only, and if I feel like the formI need to get a clarification of your objection
then I will ask for it.
DL 1: Okay. Objection. Calls for speculation on the part of the witness.
EL:
Thats a speaking objection. Thats in violation of the deposition guidelines, its
also in the scheduling order.
*

DL 1: Karl thinks youre supposed to just say objection. Formto the form is correct.
9

Another recent and helpful opinion analyzing improper speaking objections is Luangisa v.
Interface Operations, 2011 WL 6029880 (D. Nev. Dec. 5, 2011).
7

EL:
DL 2:
DL 1:
DL 2:

That is correct. Thats exactly what the deposition guidelines call for.
Well, I think you have to make an objection
That way you get to chance to cure it.
That addresses the form. Its not worth really debating, butI dont think the
courts allow an unspecified objection as to form. I think you have to call
DL 1: You have to preserve it somehow and that way you can cure it if you like.
EL:
And you can object to form and thats the way you cure it, and if I need
clarification of your objection Ill ask for clarification.
*
DL 1:
EL:
DL 1:
DL 2:
EL:
DL 1:

Yeah. I get it. I dont think I violated that.


I think by virtue of your objection youre suggesting something to the witness.
I dont.
Overruled. Both overruled.
Was there an answer given to the question?
Not so far.

Id. at *12.
The lengthy discussion (only a portion appears here) is fascinating but one might legitimately wonder
whether the clients involved should be asked to pay the cost of the debate transcript (not to mention the
cost of the attorney time). Perhaps the most significant portion of the discussion came near the end, when
the defending lawyer essentially claimed victory: Q. Was there an answer given to the question? A.
[n]ot so far. Id. at *2. The exercise had strayed far from its purpose: Questions to, and answers from,
the witness.
Other excerpts from the deposition in Serrano focus on common objections that may not appear to be
suggestive, but in fact are. These include objections that questions are vague or call for speculation,
and the ubiquitous, if you know:
[EL:

Do you believe that Mr. Young should have asked for authority to offer the
policy limits earlier than he did[?]
DL 1: Objection. Improper foundation. Calls for speculation on the part of the witness,
DL 2: Same objection.
Witness: I dont know what Mr. Young did. Or when he did it.]
*

Q:

Do you believe that [the truck drivers] insurance carrier should have at some
point paid policy limits to [M.S.]?
DL 2: Im going to object. Its really getting repetitive. Its becoming harassment.
DL 1: Objection. Improper foundation. Calls for speculation on the part of the witness.
Argumentative. And answer, if you know.
Witness: I dont know.
Id. at *34.
In his opinion, the magistrate judge carefully parsed the onslaught of objections. After reviewing Federal
Rule 30(c)(2) and the Deposition Guidelines of the United States District Court for the District of Kansas,
the court had little trouble in concluding that, (i) the calls for speculation objection is a foundation
8

objection, not a form objection, which need not be stated at the time of the deposition and tends to coach
the witness to respond that she does not know the answer[;] (ii) an improper foundation objection is a
relevance objection and need not be made at the time of the deposition under Federal Rule of Civil
Procedure 32; 10 (iii) instructions to a witness to answer if they know or if they understand the
question are raw, unmitigated coaching, and are never appropriate; and (iv) [a]n objection that a
question is vague is usually . . . a speaking objection disguised as a form objection. Id. at *45. The
court expressed, however no definitive opinion concerning whether objection to form would preserve
an objection under Rule 32, but expect[ed] that it would be adequate if the questions defect was in that
broad category and if the deposing attorney failed to request clarification at the deposition. Id.
Finally, the court in Serrano concluded that objections that questions are harassing or argumentative are
only appropriate as a prerequisite . . . to bringing a motion to terminate or limit the deposition under Rule
30(d)(3). Id. at *5.
It is good to have the guidance. But the deposition apparently broke down. How might this have been
avoided in the first place?

3.

GMAC Bank: When the Witness Disrupts.

To paraphrase the court in GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 184 (E.D. Pa. 2008), uncivil
conduct by a witness at a deposition is less discussed . . . but nonetheless just as pernicious as
misconduct by counsel. The GMAC Bank case thus addresses the duty of counsel who is confronted by
uncivil conduct by his own witness. Id.
The colloquy is too lengthy, and far too colorful, to repeat in haec verba here, though excerpts relevant to
our point are included below. Somehow the examining lawyer preserved (and kept his cool) through 12
grueling hours, during which the f-word and variants thereof were used by the witness no fewer than
73 times. Id. at 187. The courts impression was that the language was chosen solely to intimidate
and demean the examining lawyer. Id. According to the court, this was confirmed by the witnesss
repeated references to himself as the professor and a doctor of law, and repeated expressions of his
belief that [the examining lawyer was] a joke and a [f___ing] idiot. Id. at 187.
Early in the deposition, the following exchange took place:
Q.
A.
DL:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.

Do you know
No, I dont know. Be specific.
Let him finish the question.
Sir, if you cant be a little more civil
I am very civil.
in how you respond to my questions
I am very civil.
What we can do is we can have this deposition in front of a judge.
We can do that.
And the judge can
Lets do that.
No, no. Were not going to

10

The Court may have been referring to Federal Rule of Civil Procedure 32(b), which permits an
objection to be made to deposition testimony at the time of trial if the testimony would be inadmissible if
the witness were present and testifying.
9

A.
Q.
A.
Q.

A.
Q.
A.
Q.
A.

Lets do that; this way he can rip your a-- out.


Were not going to do that, sir, okay.
Then dont f---in threaten me, a--hole.
Well, sir, I would appreciate it if you would control your language in light of the
people that are present in the room and I would appreciate it if you would be a
little more courteous, okay.
Im very courteous.
Okay. Now
Lets go in front of a judge and shut up.
Sir
Shut your mouth.

Id. at 18687.
Later, the following exchange:
Q:
A:
Q:
A:
Q:
A:
Q:
A:

Q:
A:
Q:
A:

Sir, were you involved in flipping that property?


You tell me.
Sir, Im going to ask the questions. Youre going to answer the question.
I just responded with a question.
Were you involved in flipping the property at 207 North Rutherford?
You tell me. And you provide that evidence to the court.
It doesnt work that way, sir.
Yes, it does. Thats my answer. Listen, we can go around in circles and youll
end up with the same answer. You tell me. Youre that good. Youre hired by
GMAC.
Sir, my question is, and I expect an answer.
I cant recall.
Were you involved in flipping 207 North Rutherford?
I cant recall. Im involved in flipping you.

Id. at 190.
Things did not improve on the second day of the examination:
Q:

A:
Q:
A:
Q:
A:
Q:
A:

Well, I will represent to you . . . that I served Mr. Finger with a subpoena for all
of the records of the closings on those loans, including the records of payments
and disbursements.
And youre shooting blanks.
Are you very pleased with yourself, sir?
Yes, I am.
Because youre trying to perpetrate a fraud and hide it?
Go f---k yourself, Bob. Now, youre going to have to wait.
Sir, if you keep walking out-Shut the f---k up.
*

[Witness leaves the room.]


Id. at 188.
10

The court imposed sanctions. In a thorough and analytical opinion, the court required that the witness be
deposed again, under the supervision of a magistrate judge. Id. at 193. The witness and his lawyer were
held jointly and severally liable for the examining partys fees and expenses incurred in presenting the
motion, and in preparing for and conducting the portion of the deposition sessions . . . that was frustrated
by the witnesss conduct. Id. at 194. In sanctioning the defending lawyer, the court was critical of the
fact that he (according to the opinion) sat idly by, incorrectly directed the witness not to answer, and
was observed (on at least one occasion) chuckling at [the witnesss] abusive behavior toward
[examining] counsel . . . . Id. at 195 & n.17. An attorney faced with such a client cannot . . . simply sit
back, allow the deposition to proceed, and then blame the client when the deposition process breaks
down. Id. at 195 (citation omitted).
But again: Was there something that might have been done by the examining lawyer, at the time of the
examination, to minimize the abusive conduct (as unlikely as that may seem) and thereby maximize the
information flow? This is where system taught by Dave Malone comes in.

C.

A Common Sense Approach to the Difficult Deposition.

At this point, a few themes should be apparent. First, discovery works best when information flows
freely. 11 When witnesses are comfortable, information flows more freely than when they are not
comfortable. Information flow is interrupted (it generally stops) when the lawyers are arguing with one
another. Normal people (i.e., witnesses) clam up when lawyers squabble. They become especially
reticent to speak when somebody calls the court in the middle of a deposition.
Second, depositions tend to roll off the track when the lawyers start speaking to one another, or when they
speak to the witness in a form other than by questions. Less direct communication between the lawyers,
and fewer statements directed at the witness, generally result in more pages of transcript devoted to
meaningful discovery.
Third, nothing in the Federal Rules (or elsewhere, so far as we know) requires the examining lawyer to
respond to objections (including speaking objections) made by the defending lawyer on the record of a
deposition. In almost all cases the examining lawyer waives nothing if he does not respond.
Finally, question style directly effects the examiners ability to stimulate the flow of information. In
general, leading questions are viewed as confrontational. They put words in the mouth of the witness.
When the question is viewed as argumentative, the witness and his lawyer may react in a fashion that
limits the free flow of information. Open, non-leading questions generally have the opposite effect. They
invite the witness to teach.
1.

The One Word Approach.

The system taught by Dave Malone for dealing with the defending lawyer who obstructs builds on these
principals. It can be summed up in one word: Dont. Do not play his game. The Effective
11

There are many goals that can be pursued in a deposition. These include, in addition to
discovery, (i) setting up impeachment, (ii) pinning down specific testimony necessary for a motion, or to
establish the elements of a claim, (iii) boxing witnesses in, or out on specific matters, (iv) preservation of
testimony for trial, (v) assessment and settlement, (vi) and many others. It is generally agreed that
different techniques (including, for example, the use of leading questions, or carefully structuring an
examination to limit the testimony given) may be appropriate, depending on the purpose of the
examination.
11

Deposition (Revd 3rd Ed.) at 165. Do not acknowledge the objection. Do not respond. Do not even look
at the obstructor. Id. In short, behave as if opposing counsel were dead and no longer involved in the
deposition. Id. Maintain a polite and calm demeanor. Focus only on the witness. And say, in a
pleasant voice (with a slight smile), Mr. Smith, you may answer. 12
This works. It takes patience, but it absolutely, positively works. The beginning may be rocky but within
the first 45 minutes or so, if the examiner sticks with the system, the loquacious defending lawyer simply
recedes into the background. Rapport is developed with the witness and soon she ignores the defending
lawyer too. A rhythm develops, question, statement, you may answer, response. Then question,
answer, question, answer. The rhythm evolves into a conversation. The examiners outline and notes
are pushed away and she drops the lawyer act. 13 No one hears the objections anymore. The court
reporter is forgotten. Information flows freely.
Sometimes the defending lawyer refuses to be ignored. In these cases the one word approach is more
flexible. Malone recommends a simple acknowledgment. Again, without diverting your attention from
the witness say, simply: The objection is noted. You may answer. Again, this works like a charm.
Before long, the objection is noted part fades away. Sometimes, so does the please answer. Again, a
conversation evolves.
There are cases that call for more drastic measures. For example, the objection that the question is vague,
or lacks sufficient specificity suggests to the witness that she should evade. Again, do not respond to the
objector. Consider involving the witness: Do you understand the question? If the witness says no,
then ask her what she does not understand, and why. Then ask the witness to fill in the blanks: Ask for
her understanding of the term or concept at issue, and use her definition. See id. at 169. Soon, the
ambiguous or vague objections will cease.
In short, use your wits. Do not argue or respond, just ask the next question.
If all else fails (including an informal, off-the-record discussion with counsel) then bring on the lawyer
stuff. But recognize that when you do this you will likely destroy whatever rapport had been developed
with the witness. The conversation, and the information flow, will (at least temporarily) cease. But if the
deposition is headed south anyway, make your record. Without looking at opposing counsel state: Let
the record reflect that counsels objection was suggestive, designed to coach the witness, and in violation
of Federal Rule of Civil Procedure 30. Then, to the reporter: Please mark this point in the record so
that we may retrieve it quickly should we need to approach the court. Then add, to the witness: You
may answer. See id. at 16971. 14 The mid-deposition call to the court, however, is generally not a good
12

Never follow up with: Now, Mr. Smith will you [or would you] answer? This invites the
witness to decline to answer, in light of the objection.
13

Dropping the lawyer act is an art form. It requires the avoidance of lawyer words. It
involves the use of open, non-leading questions that allow the witness to teach, while only occasionally
and subtly inserting a leading question to nail down a point. It requires that one display courtesy. It
includes the demonstration of appropriate empathy and the use of non-verbal cues such as head
nodding, pausing, and showing interest. It requires the examiner to learn how to press a witness without
appearing to press. Control is established when necessary, but it is done politely.
14

Privilege objections (based on the attorney-client or other testimonial privileges) are an entirely
different matter. An instruction not to answer is permitted only when necessary to preserve a privilege,
to enforce a limitation ordered by the court, or to present a motion under [FRCP] 30(d)(3). FED. R. CIV.
P. 30(c)(2). When privilege objections are made, and instructions not to answer issued, the examiner has
12

idea since arguments made on the fly in these situations tend to be less than well considered, and
witnesses thereafter (generally) shut down. Better to move on to other question areas (if possible) and
present a motion later, if required.
2.

Application of the Approach.

Without intending to Monday morning quarterback the lawyers actually involved in these excerpts (nor
to rationalize conduct found by a court to be improper), one might consider the (admittedly hypothetical)
impact of this approach in the context of the deposition excerpts quoted previously. 15 In the Paramount
case for example, the examining lawyer faced open hostility from his opponent. But what might have
happened had the examining lawyer, at the outset, simply moved to his next question when the improper
instruction not to answer was given, rather than direct his response to the defending lawyer (No Joe).
Could the examiner have rephrased? (Do you know why Mr. X was calling that material to your
attention?). Would this have resulted in more productive examination (and minimized the eruption)?
In Serrano, could the examining lawyer have elicited more testimony, when confronted by the improper
speaking objection, by simply directing the witness to respond: You may answer? Rather than engage
in colloquy in front of the witness, would an off-the-record discussion, outside of the witnesss presence,
been sufficient to get the message across to the two DLs? If the witness continued to evade (in response
to the improper and suggestive calls for speculation objection) could the response have been: Im not
asking you to speculate. Im simply asking whether, given what you know, you believe that the . . .
insurance carrier should have at some point paid policy limits . . . .? 16 And if the answer were I dont
know perhaps another question: What would you want to know, in order to answer that question?
Perhaps nothing could have been done to control the disruptive witness in the GMAC Bank case. But it
should be noted that early in the first excerpt from that deposition the examining lawyer directed a
statement, rather than a question, to the witness: Q: Sir, if you cant be a little more civil. The
examiner then threatened to have this deposition in front of a judge. It is hard to know what came
before, but the examiner and witness were plainly off track thereafter. Would a question have been
better? Similarly where the examiner asked whether the witness was involved in flipping that property
and the witness said You tell me. And you provide that evidence to the court was the witness really
saying that question is argumentative? Would basic questions regarding the dates of purchase and sale
been more productive? And when the examining lawyer accused the witness of trying to perpetrate a
fraud and hide it should we be surprised that the free flow of information might be diminished?
*

Things sometimes happen in a deposition that no examination approach or technique can prevent or
stoprequiring resort to the courts for relief. But experience shows that when counsel remains focused

little choice but to make her record (by exploring the factual basis for the privilege assertion) and present
a motion to the court, typically after finishing the examination on other matters.
15

The suggestion that these techniques (and others) were not employed at other points in these
depositions (whether on or off the record) is not intended. The use of the excerpts is intended solely to
help illustrate the approach suggested in this article.
16

Of course, there is nothing wrong with asking for speculation in a deposition. It may not be
admissible at trial, but it is certainly discoverable at a deposition, under Federal Rule 26.
13

on the essence of the process (questions to and answers from the witness), and has a firm grasp of the
rules, even the most difficult of depositions can be an effective truth seeking opportunity.

14

STATE OF CALIFORNIA

)
)
COUNTY OF SAN DIEGO
)
)
RON BURGUNDY,
)
)
Plaintiff,
)
)
vs.
)
)
KVWN CHANNEL 4, et al.,
)
)
Defendants.
)
_______________________________________ )

IN THE COURT OF COMMON PLEAS


FOURTEENTH JUDICIAL CIRCUIT
C/A NO. 12-CP-23-1234

KVWN CHANNEL 4S MOTION


FOR A PROTECTIVE ORDER TO LIMIT THE
SCOPE OF QUESTIONING BY PLAINTIFF
TO:

ATTORNEYS FOR PLAINTIFF:


YOU WILL PLEASE TAKE NOTICE that upon ten (10) days notice, Defendant

KVWN Channel 4 (KVWN) will move the Court for an Order limiting the Plaintiffs
scope of examination of Mr. Brick Tamland and KVWN witnesses pursuant to Rules
26(c), 30(d), and 30(j)(3). The Court should grant KVWNs motion because the Plaintiff
seeks to examine Mr. Tamland and other KVWN witnesses about their personal lives in
bad faith concerning topics that are annoying, embarrassing, oppressive, and not
reasonably calculated to lead to the discovery of admissible evidence.
This case concerns allegations concerning unequal camera time and purposeful
distortion of Plaintiffs appearance on camera. Plaintiff claims that KVWN is threatened
by Plaintiffs sexual prowess. The Plaintiff noticed the deposition of Mr. Tamland, the
Chief Meteorologist, to take place on March 18, 2014, in San Diego, California. During
the deposition of Mr. Tamland on March 18, 2014, Plaintiffs counsel began questioning
Mr. Tamland concerning his own personal life. Clearly, Plaintiff was attempting to harass

and embarrass Mr. Tamland.


In response to certain questions, the undersigned counsel objected and instructed
the witness not to answer the questions posed. Portions of the deposition transcript
setting forth the questions, objections, and instructions not to answer are set forth as
follows: 1
(Questioning by Mr. Cochrane, attorney for KVWN)
Q.
How many times has a strange woman thrown herself at your feet
and begged you to take her home?
MRS. ALLRED: Object to the form. I'm going instruct him not
to answer that.
MR. COCHRANE: You are?
MRS. ALLRED: Uh-huh.
MR. COCHRANE: Okay.
BY MR. COCHRANE:
Q. Give me an idea of how many dates you have been on this past year?
MRS. ALLRED: Object to the form. I'm going instruct him not to
answer that, too.
(Later questioning by Mr. Cochrane)
Q. All right. I think I've asked you a question that you've been directed
not to answer, but I want to do it one more time just for the record to make sure I have
asked it. Do you agree that Ron Burgundy is the sexiest man alive?
MRS. ALLRED: Object to the question. I'm going instruct him not
to answer.
MR. COCHRANE: All right.
The Plaintiff was permitted to ask all other questions it desired of Mr. Tamland.
KVWN moves this Court for a Protective Order limiting the examination of Mr.
Tamland and other witnesses of KVWN, in such a manner so that the Plaintiff is not
permitted to ask questions concerning the personal lives of those witnesses. The
questions set forth above, asked of Mr. Tamland by Mr. Cochrane, are not reasonably
calculated to lead to the discovery of admissible evidence as they in no way can be

Comments in parentheses have been added by the undersigned and are not part of the transcript.

construed to help determine whether KVWN has purposefully reduced Plaintiffs camera
time or intentionally distorted his appearance on-camera. Further, the questions were
asked in bad faith and were unreasonably annoying, embarrassing and oppressive to Mr.
Tamland.
For the aforementioned reasons, KVWN moves for an order limiting the
examination of Brick Tamland and other witnesses of KVWN pursuant to Rules 26(c),
30(d), and 30(j)(3) of the Rules of Civil Procedure. KVWN further moves for an award
of its attorneys fees and costs incurred in bringin this Motion. In support of its Motion,
KVWN relies upon the record of this action, any Memorandums of Law that may be
submitted, any oral arguments that the Court may hear, and the law of South Carolina.

By: ____________________________
Gloria Allred
1234 Main Street
San Diego, CA 12457
(873) 579-6766
ATTORNEYS FOR DEFENDANT

San Diego, California


__________, 2014

Excerpts From James R. Dalton et al. v. GM Corp. et al.


05 CV 727
Hon. Stanley R. Chesler
U.S. District Court, District of New Jersey
1-4, 22-25

Case 3:05-cv-00727-SRC-TJB Document 44 Filed 08/16/05 Page 1 of 33 PageID: 1958

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT


DISTRICT OF NEW JERSEY
____________________________________
x
JAMES R. DALTON, et. al,
x
x Hon. Stanley R. Chesler, U.S.D.J.
Plaintiffs,
x
x Civ. No. 05-727 (SRC)
v.
x
x
OPINION
x
GENERAL MOTORS CORP., et. al,
x
x
Defendants.
x
_____________________________________

CHESLER, District Judge


This matter comes before the Court upon Attorney Richard Burtons and Plaintiffs
Appeal of Magistrate Judge Bongiovannis June 24, 2005 Order which denied Mr. Burtons pro
hac vice admission to this Court. (Docket entry # 23.) This Court, having considered the papers
submitted by the parties, for the reasons set forth below, and for good cause shown, denies the
appeal and affirms the Magistrate Judges Order.

I. BACKGROUND
This case was initiated on or about February 2, 2005. On or about March 28, 2005,
Defendants filed an answer, as well as various motions, including one for summary judgment and
one to dismiss several counts of the Complaint. Those motions are still pending. On or about

Case 3:05-cv-00727-SRC-TJB Document 44 Filed 08/16/05 Page 2 of 33 PageID: 1959

April 22, 2005, counsel for Plaintiffs made a motion for the admission pro hac vice of seven
attorneys. Plaintiffs moving papers in support of this motion conveyed that Defendants
consented to the admission of all but one of the applications, that of Mr. Richard J. Burton. The
instant appeal pertains only to Mr. Burtons application.1
As required under Local Rule 101.1(c), Plaintiffs application and Mr. Burtons
supporting affidavit made representations that Mr. Burton was not under suspension or
disbarment by any Court and that he was in good standing with the Bars of Florida and the
District of Columbia. Defendants, however, filed opposition to his pro hac vice application
asserting that Mr. Burtons lengthy history of unethical, uncivil and unprofessional behavior
toward witnesses, opposing counsel and the courts should compel the Court to deny his pro hac
vice admission.
Defendants submitted their opposition papers on or about May 2, 2005, at which time
Plaintiffs requested an extended briefing schedule so as to be able to adequately respond to
Defendants lengthy submission which included approximately 334 pages of accompanying
exhibits. With Defendants consent, the Court adjourned the return date from May 16, 2005, to
June 20, 2005. Plaintiffs were given an additional five weeks to respond to Defendants
opposition.
On or about June 8, 2005, Plaintiffs filed their reply brief, including approximately 260
pages of accompanying exhibits. On or about June 24, 2005, the Magistrate Judge issued an
1

Although Plaintiffs submitted the original pro hac vice motion as well as the instant
appeal, the Court may refer to Mr. Burton or Plaintiffs interchangeably when referencing
submissions made in support of these motions. The reference is only intended as a way to
simplify the Courts opinion due to the unusual posture of this motion, which does not directly
involve a party.
2

Case 3:05-cv-00727-SRC-TJB Document 44 Filed 08/16/05 Page 3 of 33 PageID: 1960

order denying Mr. Burtons application to appear pro hac vice in this Court. The June 24, 2005
Order stated that Mr. Burtons collective ethical history suggests the Court should exercise its
discretion and deny his admission to this Court. Plaintiffs now appeal the Magistrate Judges
decision, pursuant to Local Rule 72.1(c)(1), asserting that the decision to deny Mr. Burtons pro
hac vice admission was clearly erroneous and contrary to law.

II. LEGAL STANDARDS


A. Standard of Review
The standard of review of a magistrate judges decision depends upon whether the issue
addressed was dispositive or non-dispositive. Andrews v. Goodyear Tire & Rubber Co., 191
F.R.D. 59, 67 (D.N.J. 2000). A district court may reverse a magistrate judges order on a nondispositive matter only if it finds the ruling clearly erroneous or contrary to law. Id.; see also 28
U.S.C. 636(b)(1)(A); Fed. R. Civ. P. 72(a); L. Civ. R. 72.1(c)(1)(A). The district court is
bound by the clearly erroneous rule as to findings of fact, while the phrase contrary to law
indicates plenary review as to matters of law. See Haines v. Liggett Group, Inc., 975 F.2d 81, 91
(3d Cir. 1992). According to the Supreme Court, a finding is clearly erroneous when although
there is evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed. United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948). Where a magistrate judge is authorized to use his or her discretion, the
decision will only be reversed for an abuse of that discretion. Cooper Hosp. v. Sullivan, 183
F.R.D. 119, 127 (D.N.J. 1998).
Pretrial matters, such as discovery and attorney disqualification, are treated as non3

Case 3:05-cv-00727-SRC-TJB Document 44 Filed 08/16/05 Page 4 of 33 PageID: 1961

dispositive matters in this Court. Andrews, 191 F.R.D. at 68. Therefore, the denial of Mr.
Burtons pro hac vice application will be considered under the non-dispositive standard and only
reversed if this Court determines the magistrate judges ruling was clearly erroneous or contrary
to law.
B. Standard for Admission Pro Hac Vice
The United States District Courts have no uniform standard for admission pro hac vice.
In re Dreier, 258 F.2d 68, 69 (3d Cir. 1958) (there is no federal procedure for examining
applicants either as to legal ability or moral character.) In the District of New Jersey, guidance
comes from local rule 101.1(c)(1), which states in pertinent part: Any member in good standing
of the bar of any court of the United States or of the highest court of any state, who is not under
suspension or disbarment . . . may in the discretion of the Court, on motion, be permitted to
appear and participate in a particular case. N.J. Fed. Prac. R. 101.1(c)(1) (emphasis added).
Although there are few stated requirements under this rule, the discretionary language, including
the specific choice of the word may, undoubtedly contemplates situations where good standing
alone may not be enough to secure pro hac vice admission. Kohlmayer v. Natl R.R Passenger
Corp., 124 F. Supp. 2d 877, 889 (D.N.J. 2000). Indeed, unacceptable attorney conduct or
character might not always be gleaned solely from an attorneys bar standing alone. If that were
the case, the local rules would have provided that any licensed attorney would be granted
admission simply upon application.
Motions for pro hac vice admission are liberally granted in this Court, but this practice
should not suggest that the Court lacks standards for pro hac vice admission outside of the
requirements articulated in the Courts local rules. Although it is true that most pro hac vice
4

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ii. Trial Conduct


As if the above listed incidents were not enough for this Court to have grave concerns
about Mr. Burtons admission in this District, Defendants set forth examples of conduct in the
course of other litigation which are equally troubling. Defendants submission includes reference
to incidents during a trial in Broward County, Florida. Although the judges basis for a mistrial
in the Broward County case included Mr. Burtons closing arguments, the case appears to have
had various and sundry problems, the substance and effects of which are disputed by the
parties. (Adkins v. Southeast Toyota Dist., Inc., case no. 94-2422, tr. page 2063.) Although a
motion for sanctions was filed by the defendants in that case, it was later withdrawn with
prejudice. Having reviewed the submission by Defendants and Plaintiffs with regards to this
litigation, the Court finds it unnecessary to consider the alleged conduct arising from that
litigation in the instant appeal. However, the Court will explore recent conduct occurring in a
matter before the United States District Court for the Eastern District of New York.
Mr. Burton represented plaintiff Adkins, a former GM dealer-operator, in a lawsuit
against GM and GMAC in 2003 and 2004. Adkins v. General Motors Corp., et al., 03-cv-3613
(E.D.N.Y.). Defendants counsel in the instant Dalton litigation represented GM in that matter.
Although aware of Mr. Burtons disciplinary history early in the case, they did not contest his pro
hac vice application. However, Defendants now contend that their experience with Mr. Dalton
during the New York litigation motivated their opposition to Mr. Burtons pro hac vice
application in this present matter.
Following several depositions in Adkins, defendants contacted the assigned magistrate
judge regarding what they viewed as improper and unprofessional conduct by Mr. Burton during
22

Case 3:05-cv-00727-SRC-TJB Document 44 Filed 08/16/05 Page 23 of 33 PageID: 1980

discovery. The court held a hearing on March 30, 2004, to hear from the parties following
various letter submissions to the court. (Adkins Hearing Tr. of 3/30/2004.) At the outset of the
hearing, defendants presented Mr. Burtons disciplinary record to the court. (Id. at 7-8, and 24,
lines 1-14.) The court called attention to the late notice of this history and told defendants
counsel that the issue should have been brought to the attention of the court at the time of Mr.
Burtons pro hac vice application. (Id. at 24, lines 9-11.)
Following descriptions of the deposition conduct from an attorney of each side, the court
read portions of deposition transcripts that it found consitute[d] a personal attack, [was] ad
hominem, [was] arrogant, and was unbecoming someone who states they are a professional. (Id.
at 73, lines 19-22.) Examples of comments and exchanges during depositions that the court
found troublesome included:
[MR. BURTON to opposing counsel] You remind me of the kind of person thats sitting
there and directing traffic in the middle of a hurricane.
(Id. at 72, lines 16-18.)
[MR. BURTON to opposing counsel] You know what? Go back to kindergarten, please.
[OPPOSING COUNSEL] Go back to kindergarten?
[MR. BURTON] Yes. Let me finish asking my question. When Im asking a critical
question, dont have the audacity to interrupt me. You have been sitting up there and
acting like a schoolmarm. Please let me ask the questions.
(Id. at 73, lines 1-5.)
[OPPOSING COUNSEL to Mr. Burton] Take your seat and keep your voice down. I
wont have you intimidate the witness.
[MR. BURTON] I am not intimidating this witness. I couldnt intimidate a witness. I
thank you. Thats the greatest compliment that you can make.
[OPPOSING COUNSEL] Why dont you stop with the colloquy.
[MR. BURTON] Then shut up.
(Id. at 74, lines 23-25 to 74, lines 1-6.)
The court found the above remarks unprofessional and uncivil, (id. at 75, lines 24-25), and

23

Case 3:05-cv-00727-SRC-TJB Document 44 Filed 08/16/05 Page 24 of 33 PageID: 1981

ordered Mr. Burton to issue a written apology to counsel with a file copy sent to the court. The
court also put Mr. Burton on notice that if his unprofessional conduct continued, the court would
issue an order to show cause why his pro hac vice admission should not be revoked. (Id. at 76,
lines 1-13.) In response to accusations by defendants that Mr. Burton threw documents at
witnesses, the judge ordered that all future depositions would be videotaped with the
videographer directed to show the entire scene, and not just beam in on the witness. (Id. at 77,
lines 4-5.) The court also suggested a procedure for marking and distributing documents at
depositions to prevent future conflicts between the parties because it appeared from the
deposition transcripts that the attorneys grabbed documents from each other and from witnesses
during depositions. (Id. at 77, lines 13-21.) Finally, the judge warned Mr. Burton that if he
continued to improperly accuse opposing counsel of Rule 11 violations, as he had done during
witness Pauline Adkins deposition, the court might to impose Rule 11 sanctions on him for
improper claims. (P. Adkins Dep., page 101, line 4; Adkins Hearing Tr. of 3/30/2004, page 78,
lines 1-9.) Plaintiffs submissions to this Court acknowledge[] that the matters cited by [the]
Magistrate Judge [in Adkins] . . . were uncivil and [Mr. Burton] regrets them. (Pls. Reply at 9.)
Mr. Burtons most recent conduct in the Eastern District of New York Adkins litigation is
a real concern to this Court for it shows a continued cavalier attitude toward the court rules and
the privilege of pro hac vice admission. The temporary nature of pro hac vice admission
heightens a courts concerns about an attorneys prior conduct because the attorney has little or
no incentive to build a strong reputation with the court or the local legal community. Indeed,
inhibitions that may arise from long-term admission to a court do not exist for an attorney
admitted only for one case. This concern is further heightened when an attorney practicing under
24

Case 3:05-cv-00727-SRC-TJB Document 44 Filed 08/16/05 Page 25 of 33 PageID: 1982

pro hac vice admission poses problems for the court, as Mr. Burton did in the Eastern District of
New York.
This Courts serious reservation about Mr. Burtons ability to practice in this district
without causing havoc for the court and for the litigants is not tempered by Mr. Burtons
explanations. His explanations of prior conduct and his responses to recent allegations do
nothing to assure the Court that he appreciates the significance of his past actions. Indeed, his
cavalier attitude toward his past ethical indiscretions is highlighted by the explanation he gave to
the Eastern District of New York Magistrate Judge in the Adkins litigation. When questioned
about his suspension from practice, he told the Judge that he willingly pled to the bar complaint
in exchange for time off from practice: I insisted upon taking two months off in the summer
when my child was 12 and driving around the country. So I insisted upon the suspension.
(Adkins Hearing Tr. of 3/30/2004, page 43, lines 1-4.) This response hardly constitutes the
display of contrition and recognition that would persuade this Court that Mr. Burtons
shenanigans are behind him. It appears to this Court that Mr. Burtons past discipline has had no
rehabilitative or deterrent effect, thus the Magistrate Judge in this matter had more than an
adequate basis to substantiate her decision to deny Mr. Burtons pro hac vice admission.

B. Legal Conclusions - Contrary to Law Standard


i. New Requirement
The decision by the magistrate judge was a discretionary one. See N.J. Fed. Prac. R.
101.1(c). With such a standard in place, and the admittedly scant case law, it should come as no
surprise that the parties present differing interpretations of what they view as the requirements for
25