Incivility during contentious depositions is not a new topic for this blog. While the available evidence indicates that professionalism toward legal adversaries is on the rise, the topic of overbearing behavior during depositions continues to attract attention from bar regulators and members of the judiciary.
Two Illinois trial judges recently offered their advice on how litigators should handle an opposing attorney’s attempts to disrupt a deposition with personal insults. Take, for example, the following remarks from an attorney defending the deposition, which have nothing to do with the deponent’s testimony and everything to do with intimidating the examining attorney:
“I can tell you are new at this because you are not doing a good job; this is a clown show.”
“I am objecting because your questions are a waste of time, and I have better things to do than to sit here and participate in amateur hour.”
“The hiring standards at your firm must have declined, because you are not at the level I am used to seeing from your firm.”
Both judges, speaking at the Illinois Supreme Court Commission on Professionalism’s The Future is Now: Legal Services 2024 conference, said they believed that these types of remarks are not only ineffective as a litigation strategy, but they also have a tendency to undermine the public’s trust in the judicial system and the attorneys working in it.
When faced with insulting or demeaning remarks from opposing counsel, stay focused on the case itself and be sure to create a record so that the trial judge has the necessary evidence in your favor.
“I think there are huge consequences” to incivility, Cook County (Ill.) Circuit Judge Barbara N. Flores said. Lawyers are the standard bearers of the justice system, she added, so their incivil behavior causes the public to lose faith in the public institutions intended to resolve their disputes.
Champaign County (Ill.) Matthew D. Lee offered a similar view. Incivility “does not allow the litigation to move forward and it doesn’t help the clients,” he said. “So it is counterproductive to the entire reason why we even have the courts in the first place.”
Judges Flores and Lee suggested several steps that litigators should take when preparing for depositions and dealing with unprofessional behavior from opposing counsel during the deposition itself.
Know the law. Come to the deposition with a thorough knowledge of state law and any existing standing orders for handling deposition objections. This will allow the attorney to know how to frame objections, when to stop the deposition, when to call the judge, and when to request that the deposition be continued in the courtroom under the judge’s supervision.
Know the judge. While some judges (usually, judges whose careers began in a more bruising adversarial environment) will tolerate some rough-edged behavior, judges today are being trained to value civility and professionalism, and to be mindful that everyone in the justice system is entitled to be treated with respect. It’s important to know whether the case is being supervised by a judge who will, or will not, tolerate deposition shenanigans.
Maintain focus on advancing the litigation. Never respond in kind to uncivil behavior. Instead, respond professionally in a manner that moves the case forward. The vast majority of decisions judges make during pretrial discovery are discretionary. Close calls will likely be made in favor of the attorney who has behaved in a civil and professional manner.
Make a record. When faced with insulting or demeaning remarks from opposing counsel, stay focused on the case itself and be sure to create a record so that the trial judge has the necessary evidence to rule in your favor.
Take it to the judge. Unprofessional, demeaning conduct will rarely be persuasive to the trial judge. In the courtroom, focus the court’s attention on the facts and law relevant to the dispute. Have support in the record for whatever relief is requested. Focus on representing the client, not on the offending attorney’s behavior. Remember: the trial judge is looking for the information they need to do their job; which is, hopefully, a ruling in your favor.
At the end of the day, the winning response to unprofessional behavior is professional behavior during the deposition. A “pit bull” persona may be effective in attracting some clients, but it is rarely persuasive to judges. Litigators who maintain a respectful attitude toward all parties, and a strong focus on advancing the litigation in the client’s interest, will always be persuasive with the trial judge.
