I recently ran across an order regarding a procedural motion, to compel answers to some certified question(s). The underlying issue was neither complex nor worthy of further discussion. But, in the course of that motion hearing, the assigned judge was called upon to review a deposition that the parties had taken. The judge was not impressed with the statements that were reflected and elaborated in the order a bit regarding professionalism.
The subject of certified questions may be familiar to attorneys, but new to others. The deposition process is likely familiar, a process of essentially interviewing a witness on the record. During that process, questions may arise that are not answered either because of the reluctance of the interviewee or because of an objection or instruction from another party or attorney. The attorney asking questions may wish to preserve or mark some questions for later review by the judge in the case. To do so, the attorney would merely say "Certify the question."
In this case, there were some such questions. The attorney conducting the deposition "certified" the questions (the judge labeled this attorney "Attorney 2"). And thereafter filed a motion with the judge for those questions to be reviewed. I doing so, note that the certifying attorney was seeking to compel an answer, asking the judge to order an answer to the question.
The subject of certified questions may be familiar to attorneys, but new to others. The deposition process is likely familiar, a process of essentially interviewing a witness on the record. During that process, questions may arise that are not answered either because of the reluctance of the interviewee or because of an objection or instruction from another party or attorney. The attorney asking questions may wish to preserve or mark some questions for later review by the judge in the case. To do so, the attorney would merely say "Certify the question."
In this case, there were some such questions. The attorney conducting the deposition "certified" the questions (the judge labeled this attorney "Attorney 2"). And thereafter filed a motion with the judge for those questions to be reviewed. I doing so, note that the certifying attorney was seeking to compel an answer, asking the judge to order an answer to the question.
After adjudicating the motion, the judge added a "REMINDER
OF FLORIDA BAR RULE AND GUIDELINES REGARDING PROFESSIONAL CONDUCT" to the order. There, the judge noted the following:
Attorney #1 laughed at Attorney #2 when Attorney #2 certified a question.Attorney #1 asked Attorney #2 "whether she was new to the practice" when she certified a question.Later, Attorney #1 made insulting and accusatory statements about Attorney #2's client, including accusations of lying and fabrication.
Attorney #1, who belittled the knowledge and acumen of Attorney #2 did not prevail in defending the motion to compel. The Judge ordered that the certified questions be answered. In other words, the attorney that was belittled and laughed at during the deposition was found to be acting appropriately and the judge ordered that her questions should be answered.
The laughing and insulting attorney, it turns out, perhaps did not know better than Attorney #2, whom she/he accused of inexperience. Maybe there is an inclination to doubt the young? But perhaps it behooves us all to ignore age, perceptions of experience, and other distractions and focus on the substance of that in which we are engaged, like that deposition? Perhaps Attorney #1 lost sight of the substance, distracted by the irrelevant?
The laughing and insulting attorney, it turns out, perhaps did not know better than Attorney #2, whom she/he accused of inexperience. Maybe there is an inclination to doubt the young? But perhaps it behooves us all to ignore age, perceptions of experience, and other distractions and focus on the substance of that in which we are engaged, like that deposition? Perhaps Attorney #1 lost sight of the substance, distracted by the irrelevant?
The assigned judge's order cited the "Preamble to the Rules of
Professional Conduct of the Florida Bar." This indicates that "a lawyer should
demonstrate respect for the legal system and for those who serve it, including
judges, other lawyers, and public officials." The judge cited The Guidelines for Professional
Conduct of the Florida Bar, noting that it urges courtesy and civility. The judge noted that lawyers really should avoid "disparaging personal remarks, or acrimony toward other
counsel." Finally, the judge noted that counsel "should not engage in any conduct
during a deposition that would not be allowed in the presence of a judicial
officer"
The judge closed this section of the order stating that "this order reminds attorney __________ (#1) of
the above professional conduct requirements when conducting" a
deposition. The judge noted incivility and made it a matter of record in that case. Several years ago, the Florida First District Court decided that a workers' compensation judge cannot discipline attorneys. Pace v. Miami Dade County Sch. Bd, 868 So. 2d. 1286 (Fla. 1st DCA 2004). A judge could refer conduct to The Florida Bar for its consideration, but cannot discipline. But, a judge can remind.
Reading this order reminded me of a deposition I read some years ago. Everyone involved there was attending that deposition telephonically. The attorneys expressed difficulty with hearing each other and the witness. There was ample demonstration of auditory challenges in the deposition transcript. I have literally read thousands of deposition transcripts, and it is noteworthy that I still remember this one in particular. I remember it vividly because the deposition ended with a terse and excited exchange between the two attorneys.
There were insults. There was a comparison to a farm animal, with a singularly famous propensity for stubbornness. One attorney suggested that the other might be well served to strive to extricate her/his cranium from another portion of her/his own anatomy. That attorney, in response, made reference to the first attorney's parentage, but in a disparaging manner. In short, the situation got out of control.
In the process of that exchange, the witness apparently exited the call. The final lines in the deposition memorialized one of the attorneys uttering an exasperated farewell followed by the sole remaining attorney repeating "hello" and the names of the witness and opposing counsel several times. But, in the words of Phil Collins, there was "no reply at all." The remaining attorney concluded with something like "I guess the deposition is over Ms./Mr. court reporter, we'd like this transcribed."
The recurrent theme of all of this is simple, a lack of professionalism. But, whether in the presence of the judge or in the course of a deposition, all of those things that are said will be heard or read. Laughing at, insulting, demeaning, or disrespecting opposing counsel or a witness is unprofessional, rude, and inappropriate. Does it make sense to distract the finder of fact with childishness and pettiness? As an advocate who is seeking a decision in one's favor, how does it make sense to be overbearing, obnoxious, offensive, or mean? Is there some (mis)conception that such tenor, words, and behavior will influence the judge (or in other systems a jury) to agree with you?
I am persuaded that such situations or lapses are not planned. No one expects to lose her/his temper. But it happens. When it does, there has to be some constraint. It does not enhance the lawyer's case to allow some frustration or situation to escalate. Lawyers must understand that their behavior in a deposition should be the same as behavior in a hearing. After all, that verbatim transcript or recording might well end up in a hearing before the case concludes. And, the attorney (#1) might not be in the right despite her/his conviction or bravado.
It would behoove us all to remember the obligations to professional demeanor, to focus on the question or issue rather than some perception of the personality, age, experience, or other characteristics of the opposing party or attorney. Temper will be lost, but attorneys should recognize that and remain committed to recovering from it as rapidly as practical, to regaining composure, to mending any results such as belittling language, sarcasm, or insults that may have slipped out during that loss of composure.
It would behoove us all to remember the obligations to professional demeanor, to focus on the question or issue rather than some perception of the personality, age, experience, or other characteristics of the opposing party or attorney. Temper will be lost, but attorneys should recognize that and remain committed to recovering from it as rapidly as practical, to regaining composure, to mending any results such as belittling language, sarcasm, or insults that may have slipped out during that loss of composure.
