Deposition Altercation Resulting in Disciplinary Suspension

The Legal Profession blawg reports (link is to the Florida Supreme Court decision) on a disciplinary case from Florida arising out of verbal melee at a 5 day deposition in a case involving against DuPont over a product marketed by the chemical giant.  Robert Joseph Ratiner, (pic, not Mr. Ratiner) a plaintiff's counsel was videotaped by the court reporter going wild after defense counsel reached over the table and slapped an "exhibit sticker" on his laptop computer.  Ratiner's own consultant suggested that he take a chill pill.  The court reporter is heard saying that he could not continue to work in the chaos caused by Mr. Ratiner's reaction.  The net result is that poor Mr. Ratiner drew a disciplinary action, a recommended 2 year suspension which in the Florida Supreme Court opinion should be reduced to 60 days.

Any lawyer who has put up with shenanigans at a deposition provoked by outrageous and insulting conduct by opposing counsel recognizes himself in the over-reaction of this lawyer who is paying a dear price even if it is only 60 days.  Reading between the lines, a smart aleck BigLaw lawyer, reaches across the table and applies an evidence sticker to a lawyers laptop computer--implying that the unfortunate lawyer's information will be seized and offered into evidence.  The conduct by this provocative asshole attorney for DuPont was outrageous and harassing in the extreme---unfortunately, the reaction of Mr. Ratiner was disastrous.  This should have gone no further than Mr. Ratiner recessing the deposition proceeding until the court could calm the participants.  Instead, Mr. Ratiner self-destructed and damaged his client's case and his own reputation.

I have personally been in Mr.Ratiner's shoes on numerous occasions.  As recently as last summer I asked a perfectly normal question in a 2-hour deposition and opposing counsel improperly instructed his client not to answer the question.  The behavior of opposing counsel was wrong.  After some gnashing of teeth I moved on; years ago the provocation might have escalated into a ridiculous spectacle with counsel and myself coming close to blows.  By then I was already a recovering Bad Lawyer.  Many times over the years, my hero and close friend Pat has had "road scrapes" with the sorts of characters that slap "exhibit stickers" on your materials in a breach of professional courtesy as calculated acts of provocation.

Do not take the bait.  This story stands for a very important lesson, you help neither your cause, nor your client's case by over-reacting to ridiculous deposition tactics.

Shepard Fairey Lied

Who is Shepard Fairey? Fairey is the artist that designed the famous poster to the left. He's also the guy who created the "Andre the Giant" handbill that commands you to "Obey" and is papered all over the city light posts, bridge abutments, etc.

There is an ongoing copyright dispute between the Associated Press, its photographer, and Mr. Fairey concerning the "HOPE" Obama image which Fairey developed from an AP photo. I may or may not get into the issues relating to the intellectual property disputes underlying the copyright lawsuit between Fairey, the photographer and the AP--it is very compelling. I have followed the case. Terry Gross (one of the world's great interviewers) had the AP photographer, Shepard Fairey, as well as a copyright expert on her Fresh Air program, to air out the issues--check the NPR archives to hear it for yourself. I know less about intellectual property law than I do, even about family law (bleaaah!), but I know more than the lay person--so, let's revisit the subject at another time.

What has my attention is that yesterday Shepard Fairey admitted that during the litigation, he lied. See, link: http://www.eandppub.com/2009/10/surprising-developments-in-shepard-fairey-vs-ap-case.html. Not only does he admit that he lied, he admits he destroyed evidence and manufactured other evidence. Wow.

Generally speaking, litigant lying, perjury, spoliation of evidence is pretty heavy-shit. A local physician was up on malpractice charges. The doctor was the scion of one of our Home Town's wealthiest industrialist families--the arrogant bastard destroyed evidence of his medical malpractice and was caught out during the litigation because nursing staff kept copies of the original records. Not only did the jury hit him with a compensatory damages verdict, the punitive damages verdict for many millions of dollars was the largest verdict in local history up to that time. Moral: don't screw with the facts, the facts are the facts.

When I was a baby Bad Lawyer my closest friend was a young accountant. He, his senior partner, and their small business CPA firm were sued by the owner of a regional record retailer that had collapsed after financial irregularities surfaced that were undetected by my friend's accounting firm despite an audit. The record retailer's controller created the appearance of robust financial health by manipulating an aspect of inventory. The auditors should have visually confirmed the existence of these items but instead took the controller's/wrongdoer's verbal representation. Mistake. Malpractice.

No problem, my pal's firm had malpractice insurance, but my pal made a mistake that haunted his conscience. My friend lied during the deposition that the record retailer's attorney took in preparation for trial. My friend testified that he and his auditors had visually verified the existence of accounting items, that the company comptroller only verbally confirmed existed.

The malpractice case had not come to trial, and my pal was afraid. His senior partner, a real shit--was using my friend's mistake against him in their dealings and disaster loomed. What to do?

We looked at the procedural rules, depositions are governed by Rule 30 of Our Home State Rules of Civil Procedure. The rule permits persons to review transcripts of the the things they said under oath and change the testimony: yes to no, no to yes, add testimony, take away testimony, change anything. The caveat to this provision is that the person making the changes to his or her testimony is required set out the reason for any change, and submit to reexamination. Again this rule applies only if the attorney who took the deposition order the transcript of the discovery deposition. The record company's attorney did not order the transcript, but we amended the testimony anyway.

When my friend's case went to trial he and his firm was represented by one of Our Town's legendary civil litigators (not me, I was a spectator.) The defense was based on the idea previously explored, in the Bad Lawyer blog, that negligence requires proof of damages caused by the breach of the duty of care--consequently, the defense conceded the malpractice by my client and his firm (in effect admitting that the accountants did not visually verify inventory items that the company comptroller said existed)--but, denying that their audit mistake caused the collapse of the retailer. The defense, instead let the retailer demonstrate how out of touch he was with his business operation and employees. The jury returned a unanimous verdict for my friend, his partner and their accounting firm. Amazingly, my friend and his senior partner were able to survive this trauma, their accounting firm continued, and today, he is the sole owner, and one of Our Town's most respected accounting and financial authorities. My pal accomplished this, because he is honest and he is decent. I remain very proud of him.

Recently I successfully concluded the defense of a manufacturing company. During the discovery phase I deposed the plaintiff, and I ordered the transcript for my trial preparation and I directed it to be filed with the court. In the mail some weeks after the deposition I received a large stack of transcript "changes." In fact there were 24 separate changes to the testimony--it turns out that the Plaintiff's mother had inserted herself into the plaintiff's claim and lawsuit and she reviewed her son's testimony, sand she submitted the extensive changes over his signature. While none of the deposition changes were important, the fact that the mother involved herself so directly in her 31 year old adult son's injury claim led to a line of inquiry that resulted in developing facts that led directly to the dismissal of the lawsuit with prejudice by the court.. The mother's manipulation of the facts and evidence destroyed her son's claim, a claim valued by his attorney at $200,000 and which my client offered $40,000 to settle--now worth: $0.

Honesty in litigation is the only way the system can possibly work. Shepard Fairey has by his own admission destroyed the principle he purported to represent. By lying. Shame.

Depositions, Shmedreposition. . .

I was in WhiteBean, Our Home State defending a manufacturer of supermarket jello salad. Big Dennis, a former employee claims he hurt his back at work lifting jello cubes and as a result Big Dennis will never work again.

Big Dennis is a sweetheart, a 31 year old childlike, dark-complexion, hairy giant of a man who is in all likelihood, autistic--maybe, developmentally-delayed. I don't know--but, I deposed Big Dennis over the summer at his lawyer's office. While deposing Big Dennis was difficult, I've experienced witnesses fully in possession of intellect and educational achievement that have made less sense. The rules of civil procedure govern "discovery"--how you get information and how depositions of parties and witnesses. The rule relating to depositions provides that a person may review the transcript of the questions the lawyer asked and the answers he gave and make changes to the testimony as long as in each instance of a change the witness indicate why he is making the change. Generally speaking, most witnesses "waive" the right to do this--and those witnesses who preserve their rights will usually only make cursory changes, correcting spellings, mis-translations by the court reporter, although the rule does not limit the witness in any way as to the substance of changes they are entitled to make.

In Big Dennis' case I received 24 lengthy hand written changes: the changes frequently began with "Even though I said this, this is wrong..." The hand writing did not resemble the signature and because of information I had developed from Big Dennis, I concluded that what I received must have come from Big Dennis' Mom who according to other persons involved in the case--had involved herself in all aspects. I confronted opposing counsel about the Mother's self-involvement in the case and instead of agreeing to withdraw the changes argued with me that she was "only helping, Big Dennis." My motion to strike Mom's "testimonial changes" is pending before the court. We are set to begin trial on Tuesday Morning in the White Bean County Courthouse.

Yesterday I deposed Mom. Mrs. Pieceofwork has been married four times; she has the employment history of a vagrant; and, she freely acknowledged that she, not Big Dennis filled out he paperwork to initiate Big Dennis' injury claim; she, not Dennis provided the medical and injury history to the physicians who treated Big Dennis; she, not Dennis responded to the other "written discovery:" interrogatories and requests for production of documents; and, finally, she, not Dennis changed the deposition testimony as I suspected. At one point she described watching Dennis park his truck after work on the day that she says he injured himself--and, I asked her whether she also took the driver's license test for Big Dennis. I had accumulated every record I could get on Big Dennis' prior medical history and lo and behold, neither Big Dennis or his mother, disclosed ongoing treatment for the same medical condition claimed in the case pre-existing for many years prior to the injury and within weeks of the date of the so-called lifting incident. Furthermore neither Big Dennis or his mother disclosed two accidents injuring the back that pre-existed the claimed injury in this case.

Yesterday afternoon I drove out to a medical building to depose the orthopedist who treated Big Dennis. An expert witness in an injury case makes two important aspects of the Plaintiff's case: the expert provides a description of the condition that he finds upon examination; and the expert provides and opinion within a "reasonable degree of certainty" that the condition was caused by the injury. In this case Big Dennis' medical condition was caused by lifting at work.

Now I've had this happen a number of times in my career and if you're the lawyer proposing the witness this is an awful sensation. The lawyer, a veteran guy with an Andy Griffith North Carolina drawl tried to finesse the non-disclosed prior injuries and accidents but his expert wasn't biting. The doctor refused to related the condition to the claimed lifting incident. In the parlance of injury lawyers--this is called, "the doctor went south."

Case over.