When Lawyers Break Bad
“Move on with your next question and don’t raise your voice at me. It’s not becoming of a woman…”
Peter Bertling, Esq.
The quote above was a statement made on the record by Peter Bertling, Esq., to his opposing counsel during a deposition.
There are a few terms in that sentence that we have to define for this installment.
- The first is the “Esq.” after Bertling’s name. Esq., is an abbreviation of the Old French word "esquier" – it means shield bearer. In Britain, it is an unofficial title of respect, having no precise significance, which is used to denote a high but indeterminate social status. But in the United States, it means that you are an attorney: the shield that protects their client.
- The second term is “deposition.” The deposition, is a question-and-answer session between a lawyer and a witness aimed at uncovering information about the witness and the facts in a lawsuit.
Take, for example, a car accident case. You were driving along one day and became distracted. Your car makes contact with a car in front of you and the driver of that car sues you for injuries. You receive a summons and complaint, which you bring to your insurance company who then assigns you a lawyer. Your lawyer then puts an Answer in to the complaint that you got. Then, your lawyer will have an opportunity to conduct the deposition of the person who sued you, asking them questions about how they believe the accident happened and about their injuries. They have their lawyer there; you can be there; a court reporter is there to take down the questions and answers, which are then put into a booklet called a transcript.
The deposition usually takes place outside of court, usually in an attorney’s office or offices set up specifically for the depositions by the court reporting companies. These days, depositions are being conducted remotely on platforms like Skype, Zoom, and Microsoft Teams. Even though the depositions are not actually in court, the event is treated as if it were in court. The lawyers are supposed to behave accordingly. Not all do.
There are those who believe that litigation is a form of mortal combat that must be won at any and all costs, rather than the structured and professional mechanism civilized society has established for peaceably resolving legitimate disputes.
Here is a look at part of a transcript that is “on point”:
Remember, a question-and-answer session between a lawyer and a witness aimed at uncovering information about the case.
ENTER: Joseph Jamail, Esq.
MR. JAMAIL: He’s not going to answer that. I’m going to shut it down if you don’t go to your next question.
MR. JOHNSTON: No. Joe, Joe—
MR. JAMAIL: Don’t “Joe” me, asshole. You can ask some questions, but get off of that. I’m tired of you. You could gag a maggot off a meat wagon. Now, we’ve helped you every way we can.
MR. JOHNSTON: Let’s just take it easy.
MR. JAMAIL: No, we’re not going to take it easy. Get done with this.
MR. JOHNSTON: Are you finished?
MR. JAMAIL: I may be and you may be. Now, you want to sit here and talk to me, fine. This deposition is going to be over with. You don’t know what you’re doing. Obviously someone wrote out a long outline of stuff for you to ask. You have no concept of what you’re doing. Now, I’ve tolerated you for three hours. If you’ve got another question, get on with it. This is going to stop one hour from now, period. Go.
No information about the case was obtained. Joe wouldn’t allow it. Depositions are supposed to be conducted as if it were being held in court. What judge would permit that kind of exchange between the lawyers? None.
Here is another part of a transcript that is “on point”:
Thomas Decea, attorney for the plaintiff, “repeatedly directed the witness not to answer certain questions posed to him, which were, on many occasions, followed by inappropriate, insulting, and derogatory remarks against Attorney Michelle Rice concerning her gender, marital status, and competence,” including asking Attorney Rice several times whether she was married.
Michelle Rice's First Deposition:
MR. DECEA: What I want to do is get you mad enough so I can try this case.
THE WITNESS: She won't be at trial.
MR. DECEA: Promise you'll let me try this case.
MS. RICE: You should look me up, man.
A: I did.
Q: Obviously not well enough
A: I didn't look into whether you're married or not.
MR. DECEA: We're interested as to why you don't wear your wedding ring.
MS. RICE: Is that right? You can be interested all you want.
MR. DECEA: I'm very interested.
MR. DECEA: This is not a white collar interview that you’re sitting here interviewing something with your cute little thing going on.
MS. RICE: My cute little thing?
MR. DECEA: This is a deposition that has rules about what kinds of questions you can ask and how to ask them. You’ve led him the entire morning. You led him all day Monday when there’s no reason to lead him. If you want to lead him to get into a subject area I can understand that and I’ll let that go, but when you get to the subject area ask him nonleading questions.
MS. RICE: Mr. Decea, you conduct the type of deposition you wish to conduct, I conduct the type of deposition I wish to conduct.
MR. DECEA: And I respect that. I’m just saying respect my defense, respect my defense of the litigation, that’s all. Nothing personal, dear.
MS. RICE: Nothing personal, dear? Let's see. I can't tell you the number of things that you have said were more than personal and certainly offensive and probably —
MR. DECEA: You told me you're not offended.
MS. RICE: Listen, listen.
THE WITNESS: Now she's offended.
MR. DECEA: Now you're offended.
MS. RICE: I'd like to complete a sentence.
MR. DECEA: Your skin is getting thin now.
MS. RICE: There are rules of conduct as you well know that you have to observe. Whether or not you like being opposite a table from a woman, you have to observe them.
MS. RICE: It doesn’t matter.
MR. DECEA: It does, hon.
MS. RICE: It does, hon?
MR. DECEA: Yes, it does.
* * *
MR. DECEA: This is the first deposition you ever took?
MS. RICE: Right.
MR. DECEA: I mean, come on, you got to be kidding me. You're not trying this case, are you?
MS. RICE: Are you done?
MR. DECEA: You better get somebody else here to try this case, otherwise you're gonna be one sorry girl.
MS. RICE: A sorry girl?
MR. DECEA: Yes.
At his sanctions hearing, Attorney Decea claimed to the judge that he was “not aware of any rule or law which required civility between counsel.”
Conclusion
A judge from the Northern District of California on a hearing dealing with misconduct by attorneys at a deposition wrote:
The Court’s extensive review of these pages serves as a useful reminder that loaded guns, sharp objects and law degrees should be kept out of the reach of children.
There is no doubt that a lawyer must defend their client against overreaching and abuse by the opposing lawyer at a deposition. And there are ways of doing just that without getting yourself or your client in trouble. At any point you can always call the judge assigned to the case. Or you can abort the deposition and file a motion in court for what is called protective order to assure the abuse is not continued. When you have attorneys on all sides that know what they are doing, there will be very few objections, if any at all; there will be no arguing between the lawyers; it will be over quickly; and there will be no hard feelings.
By the way, Peter Bertling, the lawyer who said, “Move on with your next question and don’t raise your voice at me. It’s not becoming of a woman…”?
He was fined $250.00, which he had to pay to the Women Lawyers Association of Los Angeles Foundation—an organization in Bertling’s region dedicated to women in the legal profession.
I believe that the justice system cannot function effectively when the professionals charged with administering it cannot even be polite to one another…The profession and the system itself lose esteem in the public's eyes.
Justice Sandra Day O'Connor
You can take a look at the Jamail case, Bertling case, and the Decea case, for more information.