Misbehaving

• Author: Erik A. Christiansen
• Pages: 51-56

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 51

Misbehaving

ERIK A. CHRISTIANSEN

The author is with Parsons Behle & Latimer, in Salt Lake City.

Clients often find lawyers who match their own personalities.

Nefarious clients hire obstreperous lawyers, and aggressive liti-

gants seek out so-called “bulldog” counsel. Misbehaving clients

find lawyers that let them take the low road, and courts, litigants,

and opposing counsel pay the price for their bad-faith behavior.

Such behavior often shows up in depositions where deponents

and their counsel engage in abusive deposition tactics. Deponents

engage in evasive or belligerent behavior, while their lawyers sit

idly by and passively observe their clients make a mockery of the

process. Lawyers use speaking objections to coach clients, and

deponents treat the entire deposition process as a farce to be

shirked and gamed. Perhaps we abide it because it’s more trouble

than it’s worth to deal with, and most depositions are relegated

to the dustbin of litigation anyway.

But lawyers, as officers of the court, have special duties to

avoid conduct that undermines the integrity of the adjudicative

process. While a lawyer has a duty to be a persuasive advocate,

that duty is qualified by the lawyer’s duty of candor to the tri-

bunal. The duty of candor requires that a lawyer not mislead a

tribunal with false statements of law or fact, but it also applies

when a lawyer is representing a client in an ancillary proceeding

such as a deposition.

What should you do when a lawyer is not knowingly offering

evidence or testimony that the lawyer believes to be false; instead

the lawyer countenances a deponent frustrating the deposition

process or perhaps, worse still, the lawyer herself is hindering

the deposition?

Some deponents, with encouragement from counsel, treat

depositions as a game of hide-and-seek designed to avoid answer-

ing questions and engage in semantic gymnastics. Frustrating

enough on its own, this conduct is often little constrained as it

occurs outside of the immediate sight of the tribunal and the

only evidence for the court to review is often an ambiguous or

confusing deposition transcript. Private practice is rife with real-

world examples. Simple questions like “How many times did you

meet with counsel to prepare for your deposition?” are met with

incomprehensible answers like the following:

The Witness: Well, see, I think of time as a continuum. So I think

I met with them from the beginning to the end. And the begin-

ning was the start, and then there was the rehearsal, and then

there was the preview, and now it’s what I think of as the per-

formance. So, in my mind, I’m answering what you’re asking.

In re Shorenstein Hays-Nederlander Theatres LLC Appeals, 213

A.3d 39, 71 (Del. 2019).

If a client has found the “right” lawyer, one who matches up

with his or her personality or one who is cowed by the client,