New Kid on the Block
Bill Altreuter of Outside Counsel, in response to my last post, has a few anecdotes about some poor schmuck like me fresh out of law school being taken advantage of at a deposition, by more experienced counsel. This is an unfortunate reality of life, it's happened to me, and there's no avoiding it. As soon as counsel find out that you're a "baby lawyer," some of them will pounce on the opportunity.
Fortunately my initiation period wasn't too bad. I think the worst thing an attorney ever did to me was try and rattle me with pure and simple ridicule. I was deposing his client in a business dispute, and also present in the room were the client's brother, the client's son, and the client's brother in law (all named defendants). In other words, there was me, the court reporter, and 4 people who despised me. Sounds like fun eh? As I was questioning the client, the lawyer interjected with an improper speaking objection that every litigator reading this will instantly recognize: "Objection, counsel, this entire line of questioning is improper. What on earth do Client's company's earnings in 1993 have to do with this case? I don't see any relevance here, let's move on." Trying to stand my ground I made the rookie mistake of bothering to respond to his assertion: "Well, your clients allege that their business did not profit as a result of Co-Defendant's improperly sending them its clients, so your clients' annual profits are clearly relevant." I then asked one more question and was again interrupted. "Mr. UCL, I don't know where the hell you're going with this, but I don't think you're even in left field anymore. You're somewhere out in the parking lot!" To this remark, of course, all 4 UCL-hating men started laughing their asses off. I had to simply maintain my composure and keep plugging ahead, which I did. But it was very unpleasant.
What was the "rookie mistake" in responding, you might ask? Well, in my jurisdiction, you really can't stop a deposition for just any reason. If I was being abusive, disobeying a court order, or doing something else improper as part of my deposition, maybe then counsel could impose his views on the questions I was asking his client. Short of that, however, when I hear objections of this nature nowadays, I let the attorney say whatever he wants to say, I nod as though in acknowledgment (maybe I'll slip in a "So noted"), and go right on asking the questions without changing a thing as if counsel hadn't said a thing. What's he going to do? Stop the deposition? Go ahead, his client will end up paying our firm's deposition fees as sanctions. Instruct his client not to answer? Go ahead, his client will be sanctioned for refusing to ask proper deposition questions. 99% of the time when a jerk lawyer acts like this, it's all for show and is a total bluff.
posted by The Uncivil Litigator at Thursday, September 02, 2004
2 Comments:
Just so we are clear here, I abhor and abjure bullying, and have always found the impulse towards "initiating" freshly minted members of our glamor profession a despicable practice. That is one of the reasons I teach a class on discovery and depositions-- to give young lawyers some of the tools they need to push back.
It seems to me that the impulse towards taking advantage of younger lawyers is a vestige of an earlier time-- lawyers my age are a little less inclined to do this sort of thing. I have thought for a long time that law practice oriented blogs are one way that this sort of thing can be quashed-- our on-line legal community fosters professional congeniality, and serves an information function that arms the less experienced with anecdotal weapons which help check the sort of thing you are describing.
Oh, and one more thing: Yiddish is the universal second language of American litigators, so use it right: you are not the "schmuck"-- that would be the guy who was abusing you and the record with a speaking objection. You may have been a shlemil, but I doubt that, too. A "schmuck" is a vulgar expression for "penis"-- it should be used to describe someone who is behaving like a, you should excuse the expression, dick.
To credit the profession, congeniality is clearly the majority rule and bullying the exception, in my experience as a young litigator. Even when faced with occasional bullying, I have had co-counsel step up on my behalf to put an end to another attorney's nonsense. And in one of my very first depositions where I was completely on my own, I was so anxious that my mind completely blanked as to the standard depo "ground rules" that I wanted to explain to the witness before starting the deposition. None other than opposing counsel stepped in and explained them for me, when it was obvious that I was struggling.
But I agree with you about blogging being one possible way to combat such abuses. On the other hand, jerks will always be jerks will they not?
As for "schmuck," this is actually not the first time someone commented on my incorrect usage of that term. You'd think I'd learn. What a putz I am. I have no background in Yiddish but I seem to like using Yiddish words a lot don't I, even though incorrectly.
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