Earlier this month, our blog spent some time discussing the legal process known as discovery, which involves both sides to a lawsuit exchanging information about the evidence and the witnesses they plan to present in order to prevent a “trial by ambush.”
We also discussed how one of the more common methods of discovery is the deposition, which, to recap, is a recorded out-of-court statement made under oath by individuals involved in the case used to prepare for trial. Interestingly enough, one New York attorney is now making headlines across the nation for her conduct during an otherwise routine deposition.
According to reports, the actions of a senior assistant corporation counsel with the New York City Law Department during the deposition of a police officer she was tasked with defending have resulted in sanctions being levied against her employer by a federal magistrate judge.
Indeed, court records indicate that during the September 2016 deposition of the police officer, the attorney instructed him not to answer a minimum of 20 times and threatened to walk out at various points.
While this might not seem especially shocking, consider that the attorney also made over 600 objections during the eight-hour deposition. To put this in perspective, a count by opposing counsel indicated that objections appear on 83 percent of the almost 400-page transcript of the deposition.
The presiding federal magistrate judge, who was contacted multiple times during the course of the deposition and whose instructions went unheeded, issued an order this week dictating that the city must pay both attorneys fees and the cost of deposition, which could amount to over $10,000. Furthermore, opposing counsel was granted the right to re-depose the police officer.
In her order, the federal magistrate judge indicates that the attorney’s conduct not only unnecessarily lengthened the deposition, but also served to prevent questions from being answered and could have influenced the answers provided by the witness.
“The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient record,” reads the order.
As for the senior assistant corporation counsel in question, a city spokesperson has indicated that she’ll remain assigned to the case, but her actions will be overseen by a supervisor.
All of this raises the question as to what type of conduct is and isn’t permissible by an attorney during a deposition. We’ll examine this more closely in a future post.
If you believe your attorney has failed to properly investigate or conduct discovery, and this failure has had a detrimental impact on your case, consider speaking with a skilled legal professional to learn more about your options for pursuing a legal malpractice claim.