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$29K Sanction for Client's Frequent Use of "Fuck" During Deposition:

The Legal Intelligencer reports:

A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in.
From the opinion:
Throughout his deposition, [Aaron Wider, the owner and chief executive officer of Defendant HTFC Corp,] sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity.
Q. [T]his is your loan file, what do Mr. and Mrs. Fitzgerald do for a living?
A. I don't know. Open it up and find it.
Q. Look at your loan file and tell me.
A. Open it up and find it. I'm not your fucking bitch.
Q. Take a look at your loan application.
A. Do it yourself. Do it yourself. You want to do this in front of a judge. Would you prefer to [do] this in front of a judge? Then, shut the fuck up.

alias:
Wider and his lawyer deserve worse than a $29k sanction.

Here's the difficult witness routine done much better.
3.10.2008 3:35pm
TerrencePhilip:
All I can say is, GOOD for that judge. Although I have had many clients who made me cringe at something I said, I've never had one go off like that, and I would not tolerate it.

Misconduct and rude behavior during depositions needs to be taken seriously by the courts. I am very thankful this judge has done so.
3.10.2008 3:46pm
Mordecai:
Sounds like it was "in front of a judge."

Tee hee hee!
3.10.2008 3:51pm
Tony Tutins (mail):
How much control should a lawyer be expected to have over a client like that?
3.10.2008 3:52pm
Eugene Volokh (www):
TerrencePhilip: That's surprising, with a name like yours (unless the different spelling is a deliberate attempt to differentiate yourself).
3.10.2008 3:53pm
Randy R. (mail):
This sounds strikingly like the screen play to a new Colin Ferrel movie.
3.10.2008 3:54pm
TomHynes (mail):
I would like to be a fly on the wall when the lawyer and his client discuss which one should pay the $29,000.
3.10.2008 3:54pm
Anderson (mail):
Question: if the deponent had been compliant, but had simply sprinkled "fuck" into every sentence, would that have been sanctionable? I would argue not, if it didn't actually interfere with the deposition.
3.10.2008 3:58pm
Eugene Volokh (www):
Tony Tutins: Check out the opinion, which discusses the matter in some detail, in my view quite persuasively.
3.10.2008 3:59pm
Eugene Volokh (www):
Tony Tutins: Oh, and I should also make clear that if the lawyer tried hard to control the client, but didn't succeed, the judge likely wouldn't have sanctioned the lawyer (judging by the judge's discussion).
3.10.2008 4:00pm
Eugene Volokh (www):
Randy R.: Wouldn't it be "fook" then?
3.10.2008 4:01pm
Orielbean (mail):
I just read the pdf. Good lord is that client a dickhead. That makes me want to bring back the stocks in town centre, or at least dress him up in a clown suit and sling bull manure at him. And the lawyer definitely screwed up bigtime. What a loser.
3.10.2008 4:06pm
johnw:
Professor Volokh,

A little OT, but what if opposing council was Joe Jamail? Has an opposing council ever been strangled to death during a deposition?
3.10.2008 4:07pm
Anderson (mail):
Counsel for Wider should've been apologizing profusely and attempting to either continue the deposition or withdraw as counsel by about the second hour of that mess, if not sooner.

It's not that hard to avoid being sanctioned -- just play nicely with others and do your job.
3.10.2008 4:17pm
xxx (mail):
I read through the opinion, and if I had to decide whether this was because of mental illness or just being a jerk, I'd say mental illness.
3.10.2008 4:18pm
Brian Mac:
alias:

that was brilliant! Any more details on his trial?
3.10.2008 4:25pm
Anderson (mail):
if I had to decide whether this was because of mental illness or just being a jerk, I'd say mental illness.

Sure, but they had plenty of chance to make that case to the judge, and conspicuously declined to do so. They evidently did not want that doctor cross-examined.
3.10.2008 4:33pm
Opus:
Great quote:

"The above are only a few examples of Wider's hostile,uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony. In fact, Wider used the word 'f**k' and variants thereof no less than 73 times. To put this in perspective--in this commercial case, where GMAC's claim is for breach of contract and HTFC's counterclaim is for tortious interference with contract--the word 'contract' and variants thereof were used only 14 times."
3.10.2008 4:35pm
CrazyTrain (mail):
I agree this lawyer deserved to be sanctioned. The lawyer is also doing a horrible job for his client (bordering on malpractice) by not getting him to behave -- the client is not going to come off well in front of a jury, and this deposition alone will seriously change the settlement posture of the case (or should, at least).
3.10.2008 4:35pm
CrazyTrain (mail):
Counsel for Wider should've been apologizing profusely and attempting to either continue the deposition or withdraw as counsel by about the second hour of that mess, if not sooner.

Exactly. If that were me, I would have stopped the deposition for my client's own good -- found any non-frivolous excuse to stop that deposition. That's doing a good job of protecting your client, not letting him behave like this.
3.10.2008 4:37pm
Anderson (mail):
found any non-frivolous excuse

Would've been easy -- "Counsel, I don't understand what's going on here, but I have to conclude that my client has a medical condition I'm unaware of." The more Wider then swears at his own attorney, the more the attorney can shrug at opposing counsel and say, "See what I mean?"

At worst, then, you get hit for counsel's fees/expenses for attending the depo, and maybe not even that.
3.10.2008 4:46pm
Tom R (mail):
This deserves a Rory Award.
3.10.2008 5:03pm
Muskrat (mail):
You have to wonder if the references by the deponent (pp 10, 13, 14 of opinion) to going back to the judge, asserting that he would "restrain [the questioner]" and "give you an ass licking" (surely he meant "kicking"?) made things worse for himself. I can imagine the judge thinking "being a jerk is bad enough, but you threaten this guy with me? You dare to assert that I would somehow be on your side? I'll show you what gavel-to-posterior contact feels like." Pure speculation, but still...
3.10.2008 5:06pm
Dave N (mail):
Crazy Train is exactly right (and boy is that an odd thing for me to type). The attorney could have stopped the deposition merely by saying, "It is clear that my client's medication is not working today--let's adjourn to a time when it is" (or at least something similar).

I wonder what will happen in front of the Magistrate Judge. I'd pay good money to see if the deponent behaves or not.
3.10.2008 5:11pm
Clayton E. Cramer (mail) (www):
Is this an appropriate law school exam question? "Please compare and contrast the opinion in California v. Cohen with this fine for use of the same word in a deposition."
3.10.2008 5:13pm
Duffy Pratt (mail):
73 "fucks" in 12 hours? The guy is a piker. Joe Jamail could easily rack up the same number in 5-10 minutes. I've seen him use the word three or four times in the same sentence.
3.10.2008 5:17pm
Anderson (mail):
As I suggested above, it's difficult to imagine that mere use of "fuck" would have drawn this sanction.

In fact, if that were the only problem, the court would probably never have heard about the issue.
3.10.2008 5:18pm
NYU 3L:
johnw-

I don't know about opposing counsel ever being strangled, but a firm I used to work for had a partner who was arrested for assault for physically attacking opposing counsel (a labor union lawyer) during a deposition. Apparently it improved the firm's business, since their business clients perfectly understood the desire to strangle union lawyers.
3.10.2008 5:19pm
Eugene Volokh (www):
Clayton Cramer: Sure, but it wouldn't be a particularly difficult question. The government has lots of extra power over speech inside a courtroom than over speech in public generally. The witness can be forced to speak. The witness can be sanctioned for repeated deliberate off-topic responses (even if they aren't at all vulgar). The witness (if he's a percipient witness rather than an expert witness) can be jailed for taking money for his speech, and much more. You can come up with lots of other examples, and many of them will apply (as do the ones mentioned above) to speech in depositions and not just speech in court proper.

Note that though Cohen himself was arrested in a courthouse, he didn't wear his jacket to a courtroom ("when Cohen entered a courtroom in the building," he "removed his jacket and stood with it folded over his arm"). More broadly, the Court held that "Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places."
3.10.2008 5:35pm
A.S.:
Holy %*&#@!
3.10.2008 5:43pm
Curious Passerby (mail):
I would like to be a fly on the wall when the lawyer and his client discuss which one should pay the $29,000.

Knowing lawyers, whatever amount the lawyer ends up paying he'll just add it to his fee! Court costs?
3.10.2008 6:26pm
Dan Weber (www):
A lawyer colleague tells me the story that, during a deposition, opposing council was shouting and screaming. She said to the reporter "let the record reflect that council is shouting." He shouted "I AM NOT SHOUTING" to the court reporter, who coolly typed it all in.

After opposing council left, court reporter revealed the presence of a tape recorder.
3.10.2008 6:33pm
Anderson (mail):
Knowing lawyers, whatever amount the lawyer ends up paying he'll just add it to his fee!

I suspect the court would not smile on his doing so, tho if the client didn't contest paying it, the court might not find out either.
3.10.2008 6:41pm
AnneS:
Not that this is a defense, but one has to wonder how Wider speaks to his lawyer if that's the way he talks during a deposition that he knows will be transcribed and used as evidence. His lawyer may very well have concluded that it would be futile to try to shut him up and feared the consequences of simply ending the deposition by any of the mechanisms proposed. In which case, he should have withdrawn from representation, of course.
3.10.2008 6:44pm
Clayton E. Cramer (mail) (www):

Clayton Cramer: Sure, but it wouldn't be a particularly difficult question.
I know. I just thought the contrast was amusing.
3.10.2008 6:50pm
donaldk:
Please, please somebody post on the Philadelphia proceedings. What a hoodlum this Wider is.

Not even Jack Nicholson could do justice to the part.
3.10.2008 7:04pm
Anderson (mail):
His lawyer may very well have concluded that it would be futile to try to shut him up

Possible, but if that had been the case, counsel would've needed to be on the record to that effect.

It's as if the possibility of sanctions literally did not enter the attorney's mind. A salutary decision that will do wonders for that district.
3.10.2008 7:10pm
Hoosier:
"Not even Jack Nicholson could do justice to the part."

That's funny, donaldk. I was also trying to think of whom I'd cast for the part.

Joe Pesci (sp?) is the only one who comes to mind.

"NO! FugYOOOO! You fuggin' fuggah!"
3.10.2008 7:29pm
Visitor Again:
As to Cohen v. California, if memory serves, Justice Harlan's majority opinion observed that unwilling viewers of the epithet on Cohen's jacket could simply avert their eyes. Opposing counsel and court reporter in the deposition could not avoid the repeated profanities; it was their job to listen.
3.10.2008 7:58pm
Harry Eagar (mail):
Hey, I thought on the other thread you guys were insisting that the client should feel perfectly free to unburden himself to his counsel. What gives?
3.10.2008 8:04pm
Matt b (mail):
another ridiculous example of lawyers--especially judges--abusing the power of the courts. i'm so tired of lawyers pretending to have a monopoly on right and wrong. the whole justice system is a charade to insulate the legal profession from non-legal oversight. even the legistures are filled with lawyers helping other lawyers.
3.10.2008 8:08pm
Teh Anonymous:
IANAL, but I almost wonder if Wider's counsel was so annoyed with putting up with his behavior that he decided to let his client screw himself over. Yes, I imagine that would be unethical ... but it wouldn't surprise me.
3.10.2008 9:43pm
SC Public Defender:
So.....Wilder heard we have an "adversarial system" and took it literally?
3.10.2008 11:10pm
Sk (mail):
While the guy was rude, I am actually sympathetic (at least theoretically) to his view. His observations about what the lawyer is telling him to do: "open the envelope and tell me what it says" and so on are in themselves forms of manipulation. It seems the whole process of examination and counterexamination are designed to infantilize the witness/questioned person, and vest the questioner (the lawyer) with authority-even before the substance of the questions and responses are considered.

For example: I've often wondered why, if someone is accused of murder, that person EVER says anything in a courtroom. It can't possibly help him: the evidence necessary for a conviction comes from elsewhere (witnesses, physical evidence, etc). The only thing testimony can do is get the accused in trouble. So why not just not speak? The worst they could do to you for not speaking is less than being charged with murder.

In other words, if we are honest, the whole court testimony process is just a game in which the two lawyers attempt to score points. The defendant can't possibly score against the prosecutor; the best he can do is end up even. That being the case, why does anyone play?

Sk
3.10.2008 11:36pm
Peter Wimsey:
Sk, they can't make you testify in a murder trial; 5th amendment and all that. The only time someone does testify is when they volunteer (and that usually is a bad idea).
3.11.2008 12:50am
Hoosier:
$29K for a few "fucks"?!

That's even more than Spitzer paid!!!


(Rimshot)
3.11.2008 10:48am
Don Q (mail):
When I get witnesses like this, I rejoice; I don't whine to the judge. I defended a man in a civil suit who had been convicted criminally of assaulting the plaintiffs at a fast-food joint in da Bronx. Their testimony was excruciatingly consistent: the perp with a plaid jacket threw a turkey platter at them. Although it was graduation day at the college, they had only two beers. When they wised-off at the EBT, I couldn't wait to get them before a Bronx jury. The fast-food joint settled out. My client walked away scot-free.

The time to go to the judge is when one is blocked from obtaining necessary information one doesn't have.

Yes, the lawyer should have controlled his client. Why $29K?? Seems like a lot.
3.11.2008 3:59pm