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Defense lawyer objects, makes snide obnoxious comments and begins screaming at the lawyer during a deposition of his witness. Is that really what happens during pre-trial testimony in an attorney's office?

In the “old days” there were no specific rules and guidelines about how attorneys are required to act in a pretrial deposition. For those of you who do not know, a pretrial deposition is a question and answer session given under oath. That occurs in the lawyer's office. There is no judge present and there is no jury present. There is only a court stenographer to record the questions and answers being given.

In the “old days” there were many instances where attorneys would get into verbal altercations that resulted in screaming, yelling, harassment and in some rare cases physical contact.

A number of years ago in New York, there was an overhaul of the rules that attorneys are required to follow with regard to pretrial depositions. In fact, there was such a push towards civility between opposing counsel that this has become the standard that lawyers must apply and abide by in the state of New York.

You would think this would be common sense. However, the courts in the state of New York have required all attorneys to follow a certain code of conduct and to be civil to each other during a deposition.

This does not mean that you are to give up your legal rights when representing your client vigorously. It does mean however that you are to treat your adversary with respect and dignity even when you disagree with their stated legal position.

What can occur if a lawyer is disrespectful and does not adhere the court rules? They may be subject to sanctions and penalties by the judge overseeing their case.

Why would a lawyer become disrespectful to other counsel during a pretrial deposition of his client? The many reasons, but the most common is where the lawyer refuses to allow his witness answer questions. The attorney asking questions obviously feels that the witness must answer the question. The defense lawyer may have a different viewpoint and a verbal argument may ensue as a result.

When that occurs, typically one lawyer will demand to call the court asking for a ruling on the issue of whether or not the witness can answer the question.

In some instances, all attorneys will agree to abide by and be bound by courts' verbal ruling. In other cases, the judge may be unavailable because he is attending to other matters. In that instance, the lawyers remain frustrated and left without an immediate resolution of this dispute.

In other instances, one or more attorneys may refuse to abide by a verbal ruling from a court since the judge may not be familiar with all of the caselaw and with all the factual issues in the case. He may not want to accept an uneducated ruling given off-the-cuff in a brief telephone conversation.

In that situation, the judge may request and the attorneys may respectfully demand that these disputes be resolved in a formal motion on papers so the judge has plenty of opportunity to research the issue and render an educated decision supported by existing case law.

A RECENT SCREAMING MATCH

Recently, I had an opportunity to question a doctor in a medical malpractice case. I can tell you that since these civility rules were instituted, taking depositions have become much more pleasant. However, this one particular attorney was doing everything possible to push my buttons and rile me up despite my great attempts to be my usual pleasant self.

Because the defense lawyer persisted in playing games and making snide, obnoxious comments after many of my questions, the environment turned ugly and resulted in screaming, raised voices and, in my opinion, a complete lack of understanding of our court rules requiring and demanding civility between counsel. In addition, defense counsel even was suggesting answers to the witness through the use of long talking objections.

In order to protect the record, it was necessary for me to reply to many of this defense lawyer's comments. I believe the purpose of this was simply to distract me from the key issues in the case and to interrupt my thinking during questioning of this doctor. Although this was aggravating and at times unpleasant, I'm pleased to report I was able to get the information I needed during this doctor's question and answer session.

In 24 years of practice, I've encountered this scenario less than a handful of times. Although you might expect to see more of these disputes, I find that the really smart and talented defense lawyers have no problem complying with court rules and regulations since they too need the answers to questions I pose.


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer