Ask any litigator: What's the most annoying part of the case? Discovery. And more specifically, depositions.
"Objection. Objection. Asked and answered. Objection. I need to speak with [coach] my client."
You get the point. It sucks. And we're not the only ones who have noticed. A federal judge, fed up with the "state of discovery in modern federal civil litigation," issued a sua sponte sanctions order against a BigLaw partner after reviewing the depositions in the case. Even better? The creative sanction wasn't cash. (H/T to Above the Law.)
Once, Twice, Three Times an Obstructionist?
Judge Mark Bennett of the Northern District of Iowa is the jurist behind this week's bench-slapping. His opinion begins by speculating as to why lawyers are such idiots in depositions: grandstanding for clients, obstruct the flow of information, win a war of attrition, or intimidation and harassment.
You forgot one judge: the billable hour.
Going solo out of school? Spend more time developing practice skills and leave the marketing work for the experts.
What did June Ghezzi, a partner at Jones Day, do to draw the judge's attention?
Judge Bennett noted three issues that potentially warranted sanctions:
(1) Counsel's excessive use of "form" objections (form objections1 are improper in his jurisdiction, but proper -- and sometimes required -- in others);
(2) Counsel's numerous attempts to coach witnesses; and
(3) Counsel's ubiquitous interruptions and attempts to clarify questions posed by opposing counsel.
1"Although the [rules] talk about objections based on the 'form' of the question (or responsiveness of the answer), this does not mean that an objection may not briefly specify the nature of the form objection (e.g.
'compound,' 'leading,' 'assumes facts not in evidence').
Here's Your Sanction
Perhaps recognizing that a fine wouldn't prove to be much of a deterrent to a BigLaw partner, Judge Bennett instead came up with a more creative solution: Make a training video for Jones Day.
Counsel must write and produce a training video in which Counsel, or another partner in Counsel's firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified "form" objections, witness coaching, and excessive interruptions. The lawyer appearing in the video may mention the few jurisdictions that actually require only unspecified "form" objections and may suggest that such objections are proper in only those jurisdictions. The lawyer in the video must state that the video is being produced and distributed pursuant to a federal court's sanction order regarding a partner in the firm, but the lawyer need not state the name of the partner, the case the sanctions arose under, or the court issuing this order. Upon completing the video, Counsel must file it with this court, under seal, for my review and approval. If and when I approve the video, Counsel must (1) notify certain lawyers at Counsel's firm about the video via e-mail and (2) provide those lawyers with access to the video. The lawyers who must receive this notice and access include each lawyer at Counsel's firm--including its branch offices worldwide--who engages in federal or state litigation or who works in any practice group in which at least two of the lawyers have filed an appearance in any state or federal case in the United States. [...] Counsel need not make the video publicly available to anyone outside Counsel's firm.
Yowza. That's a lengthy order. Here's the short version: Make a video explaining proper objections and force everyone in your worldwide BigLaw firm to watch it.
Well played, Judge Bennett. Anyone care to sanction him for not using a paragraph break or six?
- Jones Day Sanctions Order (Scribd)
- LeBron's Lessons for Laterals: Burning Bridges, Mending Fences (FindLaw's Greedy Associates)
- Small Piece of Advice for Associates: Be Coachable (FindLaw's Greedy Associates)