depositions 101: part 5 – dealing with the obstreperous ... 101 - part 5 slides-web.pdf ·...

Depositions 101: Part 5 – Dealing with the Obstreperous Opposing Counsel

Friday, November 19, 2010Presented By the IADC Trial Techniques and Tactics Committee

Welcome! The Webinar will begin promptly at 12 pm CST. Please read and follow the below instructions:

1. If you have not already done so, please join the conference call.

2. Mute your phone line. If you do not have a mute button or are on a cell phone, press *1 to mute your phone.

3. If you are on a conference phone, please move all cellular or wireless devices away from the conference phone to avoid audio interference.

4. If you have questions during the presentation, you may utilize the Q&A function at the top of your screen. You may type questions here and it will be sent to the presenters for response. If your question is not answered during the presentation, our presenters will answer questions at the end of the webinar, or via email following the webinar.

5. Visit the “Handouts” section in the upper-right-hand corner of the screen if you would like to download a copy of this PowerPoint presentation and any referenced documents.

Click on the Q&A tab on your screen to type a question for the presenters.

Click the Handouts tab on your screen to download this PowerPoint and any referenced documents

Spencer H. SilverglateClarke Silverglate & Campbell, P.A.

Miami, [email protected]

Moderator

mailto:[email protected]

http://csclawfirm.com/index.php

Depositions 101 Webinar SeriesBONUS!!! Part 5: Dealing with the Obstreperous Opposing Counsel

Dan Scully vs. Gino Marchetti

Texas‐Style Deposition

Deponent vs. Joe Jamail


JAMAIL: Did you talk to this man sitting next to you before this deposition started?

DEPONENT: Yesterday, but he had nothing to do… [INAUDIBLE]

JAMAIL: I didn’t ask you that…

DEPONENT: I’m saying, I said it though, didn’t, I?


JAMAIL: Did you talk to him, sir? What’d you say?

DEPONENT: I said nothing. I said you have a case of insipient verbal diarrhea.


JAMAIL: [INAUDIBLE] … we’re going to see about that. Did you talk to him yesterday?

DEPONENT: Yes.

JAMAIL: How long?

DEPONENT: Hmm, about three hours.


JAMAIL: Talk about this case?

DEPONENT: Yes.

JAMAIL: Did you tell him the other companies you consulted for?

DEPONENT: No.

JAMAIL: You’re under oath here.

DEPONENT: I did not.


JAMAIL: We’ll see about it. When you were at Monsana [sic], what was your title?

DEPONENT: At Monsana [sic], what do you mean?

JAMAIL: At Texas City?

DEPONENT: Research chemist.


JAMAIL: Was that your title during your entire stay at Texas City?

DEPONENT: At Texas City, yes.

GARRETT: Don’t talk over each other.

JAMAIL: After you left Texas City,


TUCKER: Wait a minute. Let me ask a question here.

JAMAIL: Yes.

TUCKER: Do you represent this guy or not?

UNKNOWN: Who are you?


TUCKER: My name’s Tucker, and I represent Hershire [sic], and I just wanna know if you represent the guy or not. I’m getting’, you know, if you don’t represent him, you don’t have any right to be making any objections. If you do represent him, tell us so.

GARRETT: Why don’t you keep your mouth shut, I’ll do what I want.


TUCKER: No, you won’t do what you want. [INAUDIBLE]

UNKNOWN: No, you’re not.

GARRETT: Yeah, I am.

JAMAIL: That’s bullshit.


GARRETT: I’ll make whatever objections I wanna make, and I’ll make ‘em as loud as I wanna make ‘em. Now, you just shut your mouth, and we’ll keep the record straight.

TUCKER: Don’t tell me to shut my mouth, boy. You may be big, but you want to see how bad you are, come on.

JAMAIL: And, I wouldn’t try that, Ed.


DEPONENT: Are you threatening to fight?

UNKNOWN: Hold on just a second.

JAMAIL: No, I want to know who [INAUDIBLE]

DEPONENT: We’re going to be outnumbered, Ed.

GARRETT: Hold on just a second.


JAMAIL: No, you’ve gotta big mouth. Yeah, you do. Now, you need to either represent the man or not. [INAUDIBLE]

GARRETT: [INAUDIBLE] making an objection on the record.

JAMAIL: Then you’re not entitled to be his lawyer, then.


JAMAIL: Well you’re trying to do it. [INAUDIBLE]

JAMAIL: And, another thing. [INAUDIBLE] I’m gonna tell you something else. You don’t run this deposition, you understand?

GARRETT: Neither do you, Joe.


JAMAIL: You watch and see, you watch and see who does, big boy.

GARRETT: I’m tellin’ you, Joe.

JAMAIL: No, you ain’t tellin’ me a goddamn thing.

GARRETT: I can make whatever objections I want to.


JAMAIL: You just make your objections and keep, and keep quiet, you see? And, don’t be tellin’ another lawyer to shut up. That ain’t your goddamn job, fat boy.

[INAUDIBLE]

DEPONENT: As I said before, you have an insipient bad mouth.


JAMAIL: What do you wanna do about it, asshole?

DEPONENT: Oh, I’d like to knock you on your…[INAUDIBLE]

JAMAIL: Well come try it. Come over here and try it, you dumb son-of-a-bitch. Come over here.


UNKNOWN: Hey, wait a minute, hold on. No way.[INAUDIBLE]

JAMAIL: Associates are taking Mr. Garrett out in the hall to lecture him, I suppose. That doing this over our objection. We started this deposition, unable to get an answer from this man.

Federal Rules of Civil Procedure

• Rule 30 – Depositions Upon Oral Examination– Procedures for taking oral depositions

• Notice to party – subpoena to non‐party

• Too broad or problematic – Protective Order Rule 26(c)

– Consider in conjunction with other discovery rules• Rule 26(b)(1) – scope of discovery

• Relevant

• Reasonably calculated


• Rule 30(c). Examination; Objections– Objections must be noted on the record

• Form of question waived

• Other objections reserved – state at beginning

• Rule 32(d)(3)

– Examination proceeds

– Non‐argumentative/non‐suggestive manner

– Preserving a privilege, to enforce a limitation by court order or to present a Rule 30(d)(4) motion


• Rule 30(d). Schedule and Duration; Motion to Terminate or Limit Examination– Limited to one day for seven hours

– Unless impeded or delayed by the deponent, another person or situation

– Sanctions can be imposed for attorney’s fees


• Rule 30(d)(4).– Motion to terminate or limit deposition

– Grounds: conducted on bad faith or in a way intended to annoy, embarrass or oppress the deponent

– Rare, but necessary• If anticipate problems, call court clerk prior to depo


• Rule 32(d)(3). Effect of Errors and Irregularities in Depositions, As to Taking of Deposition.– Not waived: unless it could have been corrected during the deposition

– Waived: if it relates to the manner of taking the deposition, the form of a question or answer, a party’s conduct, if the matter might have been corrected at the time and it is not timely made during the deposition


• Rule 37 Sanctions Apply to Depositions

Model Rules of Professional Conduct

• Rule 8.4 – Misconduct– Professional Misconduct:

• Engage in conduct that is prejudicial to the administration of justice

In A Nutshell

• Difficult Opposing Counsel– Techniques

– Suggestions

– Do’s and Don’ts

• Cannot Cover All Types of “Jerks”

• Today’s Examples– The Bully

– The Liar

– The Bulldog

• Other Bumps

Jerks As Opposing Counsel

• Your Behavior in the Face of “Jerkdom”– Don’t sink to their level– Professional– Calm– Composed– Confident in position– Honest– Integrity– Good by your work– Give respect to everyone – whether deserved or not


• Why, you ask?– Right thing to do

– Client will benefit in the long run

– You will benefit – judge and jury

– Reputations with other attorneys


You can’t control them – you can only control you.

Field Guide to Jerks

• How Can I Tell?– Starting Point

– Sense Who You’re Dealing With

– They Can Develop Over Time –They Evolve

– Signs of the Evolution ‐ Samples


• Starting Point– Give everyone the benefit of the doubt

• Unless you already know better!

• If unknown, ask within your firm or friends in other firms.

• Sense Who You’re Dealing With– Level of experience

– Level of expertise

– Case perspective


• They Can Develop Over Time –They Evolve– Plaintiff whose case begins to go bad

• Garbage case

• In trial, expect lies

– Co‐Defendant who throws your client under the bus


• Signs of the Evolution – Samples – Correspondence that misstates communications

– Communications at 5:00 p.m. on Friday

– Confirmation of agreements never made

– Inaccurate statements to the court

– Extensions not granted or rescinded• Beware of the staff person extension game

– Never returns calls


• At first hint of a jerk‐in‐the‐making, go into Anti‐Jerk Mode– If you know their reputation, …– Confirm everything in writing– Limit phone calls– Memory failure– Email – too casual, too quick– File motions seeking extensions (court doesn’t like)– Protect staff and more junior folks– Beware of the attempted truce


• Early Warning Signs: Client Alert– No client likes surprises– Jerks make cases expensive– Advise the client and prepare them

• Discovery• Additional time to prepare witnesses

– More work = more expense– In‐house more susceptible to abuse– Forewarned is forearmed

Today’s Jerk Samples

• The Bully– Disclaimer to Mom

– Typical behaviors


• The Bully– Techniques

• Work the case

• Weak in technical areas of the law

• Paper everything

• Avoid one‐on‐one communications


• The Bully in Deposition– Prepare witness– At deposition – breaks

often, keep calm– Stay on record– Aware it will get abusive

• Call clerk• Courthouse

– Abusive behavior• Abusive vs. Rude• On the record• Stop the proceedings but stay on record

• CALL THE COURT


• The Liar– Historical behavior

– “Dr. Bad Faith”

– Truck Case


• The Liar– Guidelines

• Verify everything

• Document everything

• Trust nothing

• Provide extensions—ask for none

• Respectfully defend and clarify in court


• The Liar– Expectations

• Misrepresentations

• Check all exhibits

• Respond to and correct misrepresentations


• The Liar– Dealing with the court

• Be clear and assertive

• Correct all misrepresentations

• Court’s intuition

– Leave nothing to chance


• The Bulldog– Sample behavior

• Normally rude in private• “I know it’s your client…”• 5:00 p.m. communications

• Rapid fire discovery• Many motions to compel• No extensions• On the edge of abuse• Many speaking objections• Frivolous Rule 11 motions


• The Bulldog– Techniques

• Prepare client & witness• Clear your schedule• Prepare for quick turnaround

• Prepare to file PO motions on depo notices

• Prepare “offense” discovery

• Get out in front• Prepare to “out work” them


• The Bulldog– Expectations

• Attitude—all corporations are evil

• You are evil as well

• Everyone against the little guy

• On occasion – “True Believer” – very difficult

Depositions 101 Webinar SeriesBONUS!!! Part 5: Dealing with the Obstreperous Opposing Counsel

Be “Atticus‐” Like in All You Do

Questions for Presenters?

Daniel J. Scully, Jr.Clark Hill PLC

500 Woodward Ave. Suite 3500 Detroit, MI 48226(313) 965‐8468

[email protected]

L. Gino Marchetti, Jr.Taylor, Pigue, Marchetti & Mink, PLLC

2908 Poston Ave.Nashville, TN 37203(615) 320‐3225

[email protected]


http://www.clarkhill.com/


http://www.tpmmlaw.com/

Depositions 101: Part 5 – Dealing with the Obstreperous Opposing Counsel

Friday, November 19, 2010

Thank you for Participating!To access the PowerPoint presentations and materials from all 5 parts of the Depositions 101 Series, visit our website

under the Members Only page (you must be signed in) and click on “Past Webinar Materials,” or contact Mary

Dannevik at [email protected].


depositions 101: part 5 – dealing with the obstreperous ... 101 - part 5 slides-web.pdf ·...

Documents