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There is something about deposition practice that brings out the worst in lawyers. Often the culmination of years of antagonistic litigation, a deposition throws counsel � and frequently their clients � together in a small room, unconstrained by the rules of evidence and unsupervised by the judge. Although most attorneys behave honorably, all too often things get out of hand, as lawyers engage in harassment, obstructionism, posturing, and endless bloviation. Actual violence is thankfully rare, but threats and challenges are distressingly common, as immortalized in the famous videotape of Texas lawyer Joe Jamail taunting a witness to “come over here and try it, you dumb son of a bitch.” Most deposition tantrums never come to light, let alone achieve Jamail-like levels of notoriety, but every now and then a nasty dispute becomes the subject of a reported decision. These cases � frequently combining the attributes of morality tales and soft-core porn � hold a special fascination for lawyers. Sometimes there is even a lesson to be learned, although it is not always the one intended by the court. A GRUDGE MATCH One such case is Redwood v. Dobson, decided in February by the U.S. Court of Appeals for the 7th Circuit. The litigation � which the court called a “grudge match” between Erik Redwood (a self-styled renaissance man and “Buddhist reverend”) and his one-time attorney, Harvey Welch � had spanned more than eight years of angry accusations and countercharges of racism, battery, incompetence, and abuse of process. Eventually, the lawyers, the lawyers’ lawyers, and a luckless local prosecutor were drawn in. Matters came to an ugly boil during the deposition of attorney Marvin Gerstein, who had once represented Welch but had since become a co-defendant. Redwood was represented by Charles Danner, who, as the 7th Circuit noted, “spent the first 30 pages or so of the transcript exploring Gerstein’s . . . vehicular violations.” Gerstein’s lawyer, Roger Webber, instructed him not to answer some of those questions, but Danner continued to pursue equally pointless topics. What happened next, as the 7th Circuit observed, must be quoted “to be believed”: Danner: Mr. Gerstein, have you ever engaged in homosexual conduct? Webber: I believe it violates Rule 30, and I’m instructing him not to answer the question. Gerstein: I’m not answering the question. Danner: Mr. Gerstein, are you involved in any type of homosexual clique with any other defendants in this action? Webber: Same objection. Same instruction. The deposition continued in a similar vein, with Danner asking intrusive and irrelevant questions, some of which the 7th Circuit characterized as “unfathomable,” and Gerstein becoming increasingly uncooperative. (In a telephone interview, Danner told me that the homosexuality queries were relevant to his civil conspiracy claim because the local prosecutor’s office had shown “bias in favor of gays and lesbians.”) In reviewing the mess, the 7th Circuit called Danner’s conduct “shameful” and censured him for conduct unbecoming a member of the bar, adding that repetition of his performance would lead to heavier sanctions, “including suspension or disbarment.” ENTER RULE 30(d)(1) But then � incredibly � the court censured Webber as well, delivering the same warning about possible disbarment. Even though he had been “goaded” by Danner, the court held that Webber’s representation of his client had been “unprofessional and violated the Federal Rules of Civil Procedure.” Rather than instruct Gerstein not to answer the offending questions, Webber should have “called off the deposition and applied for a protective order.” There is more than a bit of unreality in this aspect of the 7th Circuit’s analysis. Yes, Rule 30(d)(1) states clearly that a lawyer “may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion [for a protective order].” And yes, Webber’s instructions to Gerstein did not fall under any of the provisions of the rule. But surely it is obvious that Webber was simply attempting to protect his client under extremely difficult circumstances, while trying to get the deposition finished with the least possible expenditure of time and money. Imagine the unfair choice that Webber would have faced under the 7th Circuit’s approach when Danner asked his first over-the-top question: “Mr. Gerstein, have you ever engaged in homosexual conduct?” Webber would have had to direct his client to submit to an invasion of privacy or else suspend the deposition then and there. But suspending a deposition is hardly without cost. Webber then would have had to prepare a motion, obtain a court date, appear before the trial judge, and present his argument. Although his objection would no doubt have been sustained, there was no guarantee that he would have been awarded adequate costs. And then he would have had to go back to the deposition with no assurance that Danner’s obnoxious questioning wouldn’t resume, in which case Webber would have had to repeat the entire process. At the time, it must have seemed to be in everyone’s best interest to get everything on the record in one sitting. Only with the benefit of hindsight does it become apparent that Webber should have blown the whistle much, much sooner. PLAY IN THE JOINTS And therein lies the problem. Working lawyers have to craft pragmatic solutions, usually under extreme time pressure and often on tight budgets. Rules are rules, but sometimes there ought to be a little play in the joints, a little recognition that the spirit of a rule may be more important than its harsh enforcement. Any lawyer who has ever defended a deposition against an overbearing lout will sympathize with Webber’s dilemma and will understand why running to court wasn’t obviously the remedy of first resort. Unfortunately for Webber, the 7th Circuit didn’t see it that way. The three formidable judges on the panel � Frank Easterbrook, Diane Wood, and Ilana Rovner � are as intellectually accomplished as any on the bench, but none of them has extensive experience in private practice, much less in a small-town, small-case practice such as Webber’s. According to their official biographies, only one spent any time in private practice, and that was a relatively short stint as an associate at a large law firm nearly 30 years ago. It is speculation on my part, but I have to wonder whether any of them has ever had sole responsibility for defending a beleaguered client at a deposition. I’m not quarreling with the 7th Circuit’s invocation of Rule 30(d)(1), and I’m not suggesting that lawyers should be encouraged to instruct witnesses to keep mum. I am suggesting, however, that the court could have cut Webber a little slack. C’mon, Your Honors, he violated a rule of procedure, not a moral imperative. There was no need to slap Webber with the same punishment as Danner, whose conduct was far more egregious. A few words of stern caution would have gotten the general point across. But instead of showing flexibility � no harm, no foul � the 7th Circuit simply laid down the law, censuring both the provocateur and his hapless foil. While that result might seem evenhanded, it will inevitably create new headaches for trial judges. In the past, lawyers had a variety of ways of deflecting churlish questions during heated depositions, including an occasional bit of witness-instructing brinksmanship. It wasn’t always pretty, and there were regrettable abuses, but the attorneys usually succeeded in resolving matters among themselves. Now it appears that the lesser tactics have been completely ruled out, leaving only the nuclear option of terminating the deposition and running to the judge. If anything, that will actually empower bullies to pursue improper lines of inquiry, knowing that their opponents will have to either answer every question, no matter how foul, or pull up stakes and head to court. The 7th Circuit might have thought the Redwood decision would “defuse . . . the heated feelings” at depositions, but it may well have the reverse effect of making litigation more contentious. Lawyers already play enough chicken, and now they’re going to have to learn a new game � truth or dare.
Steven Lubet teaches law at Northwestern University. His latest book is Lawyer’s Poker: 52 Lessons That Lawyers Can Learn From Card Players (2006). This commentary first appeared in The American Lawyer , an ALM publication.

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