Tuesday, September 17, 2019

How not to practice law: engage in all types of misconduct during a deposition

As I am sure you know, there are many cases out there that describe inappropriate conduct during discovery in general, and during depositions in particular, but if you are looking for a new one, here you go

Last month, William Gallo, a US Magistrate Judge in the US District Court for the Southern District of California, issued a long opinion in a case called La Jolla Spa MD, Inc v. Avidas Pharmaceuticals, in which he orders the defendant’s lawyer to pay out of her own pocket, almost $30,000 in sanctions for conduct the judge referred to as “atrocious.”  The judge also ordered the lawyer to report the sanctions to her home state bar.

The opinion starts by stating that “[t]he lay perception of a “good” attorney is someone who engages in the obstreperous, scorched-earth tactics seen on television and makes litigation for the opposing side as painful as possible at every turn. However, outside the fictional absurdities of television drama, attorneys in the real world—presumably educated in the law and presumably committed to upholding the honor of the profession–should know and behave much more honorably.”

The opinion then goes into great detail to illustrate six different types of conduct that are common to cases in which courts impose sanctions for misconduct during discovery: (1) instructing a witness not to answer based on impermissible grounds, (2) interrupting the deposition to tell the attorney taking the deposition how to ask their questions, (3) engaging in unnecessary colloquy, (4) interrupting the deposition with unnecessary (and long) objections, (5) using objections to suggest to the witness how to answer questions and (6) engaging in harassing and aggressive behavior toward the witness.

No comments:

Post a Comment