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.

The Prosecutor has an absolute right to frame you!

The Supremes hear an oral argument, today, that addresses the unfettered right of  prosecutors to frame suspects in criminal cases--or, as the prosecutors frame the issue, "there is no-freestanding right not to be framed."

Council Bluffs, Iowa County prosecutor David Richter participated in the framing of two black men who were sentenced to life without parole for the shotgun murder of a white man.  The suspects Terry Harrington and Curtis McGhee were innocent, weren't there, didn't do it--someone else did, probably a white guy.  But Richter was running for office and needed to convict someone of the crime and these two recent high school grads from across state lines fit nicely.  So Richter and the cops coached a 16 year old (criminal) on the facts to act as their star witness and an all white jury convicted Harrington and McGhee.  After 25 years in prison Harrington and McGhee were exonerated and released from Prison, now former Bush-administration Solicitor General, Paul Clement, is trying to sue Richter, et al.

But, prosecutors are immune from lawsuit for framing innocent people. "Huh?!  Are you freaking kidding me, Bad Lawyer."  I kid you not.

For more details and analysis I yield the floor to NPR's  Nina Totenberg  http://www.npr.org/templates/story/story.php?storyId=120069519