Wednesday, December 28, 2016

Lawyers Behaving Badly

Good News!  I won my little trial today.  Bad News.  These days we have to worry about Donald Trump taking credit for it via his twitter.

Let's re-cap.  We hate our government feeding the poor with our tax money.  We hate paying for housing them in our jails. We don't like do-gooders feeding the hungry in the streets and making the feeding places dangerous.  Just what is it should society do?

Stock market down today.  No comment from President Tweet. In his mind he is only responsible on up-tick days.


Yet, I survived with no involvement from CPS.




Germany Moves To Impose Crippling Fines On Social Networks For “Fake News”

by jonathanturley
I recently wrote about the growing threat of government regulation of speech on the Internet under the guise of combatting "fake news." Germany has been ground zero for civil libertarians for the rollback of free speech. Angela MerkelGerman Chancellor Angela Merkel long ago established herself as a menace to free speech, particularly in her decision to first apologize to authoritarian Turkish President Recep Tayyip Erdoğan for a satirical poem and then approve the prosecution of the comedian is a shocking and chilling disgrace. Now, Germany is considering imposing a legal regime that would allow fining social networks such as Facebook up to 500,000 euros ($522,000) for each day the platform leaves a “fake news” story up without deleting it. Governments have finally found a vehicle to get citizens to allow them to curtail or chill speech -- ironically in the name of facilitating "real news" or "truth." It is perfectly Orwellian and Merkel's latest contribution to the erosion of free speech in the West. I recently discussed the issue as part of an interesting segment with Ted Koppel.

Serving Intolerance with An Anti-Democratic Relish: Hawaiian Restaurant Bars Trump Supporters

by jonathanturley
ff-19-640x454Honolulu’s Café 8 ½ appears to be serving dishes with an anti-democratic relish after the election. To the delight of many of its customers, it has barred anyone who supports President-elect Donald Trump from eating at the Hawaiian restaurant. The sign on the front door reads “If you voted for Trump you cannot eat here! No Nazis.” The sign has caused a firestorm of controversy for the relatively small restaurant.

Have A Haramy Christmas: Islamic Leader Warns Wishing Friends “Merry Christmas” Is Worse Than Murder

by jonathanturley
220px-Jonathan_G_Meath_portrays_Santa_ClausWe recently discussed how rabbis have issued warnings to hotels and other businesses not to display Christmas trees as offensive to Jewish values, even threatening to pull the kosher certification from businesses.  Now, a leading Muslim authority has declared that even wishing neighbors a "Merry Christmas is worse than murder. It is "haram" or forbidden. The view of Dr. Zakir Naik is not new (and he stated this view years earlier), but there is an interesting alternative take on the issue in The New York Times by a Muslim writer on the shared traditions between Christianity and Islam.


Congressman arrested for domestic abuse and aiming gun at wife

Corley was charged with first-degree domestic violence and pointing a firearm at another person.




Unhappy holidays: Houston police force homeless people to throw away food

On Thursday, the Houston Police Department targeted a group of homeless advocates who were attempting to hand out hot food and gifts to the homeless.


Court Imposes $4,700 Fine on Lawyer For (e.g.) Calling Adversary a “Racist” During Employment Discrimination Deposition

by MJPOSPIS on DECEMBER 22, 2016
We’ve seen one judge warn a lawyer not to call their adversary an “asshole” in private correspondence. Now we have a decision imposing a $4,700 fine/sanction on a lawyer for (e.g.) calling their adversary a “racist” during a deposition.
In Scott-Iverson v. Indep. Health Ass’n, Inc., No. 13-CV-451V(F), 2016 WL 7320067 (W.D.N.Y. Dec. 15, 2016), the court discussed and applied the rules governing attorney conduct at depositions.
Among plaintiff’s allegations in this Title VII race and sex-based discrimination/hostile work environment case was that a co-worker dressed up as “Aunt Jemima”, an offensive racial stereotype, in plaintiff’s presence. (I wrote about the case here.)
This decision relates to defendant’s motion to compel a further deposition of plaintiff and for sanctions against plaintiff and plaintiff’s counsel.
In civil litigation, the “deposition” is a question-and-answer session where the witness provides, under oath, answers to questions “on the record”. The process is regulated by various rules, including, as relevant here, Federal Rule of Civil Procedure 30.
Fed. R. Civ. P. 30(c)(2) provides:
Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
Since depositions are typically conducted in lawyers’ offices and outside direct judicial supervision, the opportunity for abuse is arguably enhanced. One need not venture far online to see lawyers behaving badly at depositions. See, e.g., thisthis, and this.
In Scott-Iverson, among the exchanges cited by the court was the following:
In response to [defense counsel]’s request that Plaintiff produce a log [] of Plaintiff’s activities following her employment with Defendant, which Plaintiff refused to produce, [plaintiff’s counsel] objected and, after calling [defense counsel]’s request “absurd,” [plaintiff’s counsel] went on to accuse [defense counsel] of attempting to “use the discovery [request] to harass and badger my client, presumably because you are a racist.” (Emphasis added.)
The court’s assessment of this situation is instructive to attorneys in relation to their deposition conduct. Judge Arcara explained:
On its face, [plaintiff’s counsel]’s outburst, wholly unprovoked based on the court’s review of the record, by anything [defense counsel] had said up to this point, constitutes improper argument in connection with a simple objection, apparently one based on a perceived lack of relevance by [plaintiff’s counsel], in violation of Deposition Guideline No. 4 (“counsel’s statements when making objections should be succinct and verbally economical, stating the basis of the objection and nothing more”), and Deposition Guideline No. 10 (“counsel for a witness shall not engage in any argument with examining counsel as to the objectionability of any question. Rather, he may note his objection and permit the witness to answer the question, subject to the objection.”). Additionally, although not a basis for sanctions under the court’s Civility Principles, [plaintiff]’s impugning of [defense counsel] as a “racist” constitutes a clear and unmitigated violation of Civility Principle—Lawyers’ Duties to Other Counsel No. 2 (“We will abstain from disparaging personal remarks or acrimony toward other counsel….”). Such aspersions have no place in the litigation process and cannot be tolerated. Merely questioning a plaintiff regarding the basis for alleging race discrimination does not mean examining counsel is a racist or harbors racial animus toward the witness. (Emphasis added.)
It ultimately imposed a fine of $500 upon plaintiff’s counsel “for each of the four aspersions upon [defense counsel]’s character as a ‘racist,’ or engaging in racially discriminatory examinations of Plaintiff, and a fine of $50 for each of the 54 violations of Rule 30(c)(2), and the Deposition Guidelines subject to sanctions as determined by the court.”


Evidently some lawyers and litigants don't understand what it means to be "on the record" during a deposition. Either that or they don't mind being caught saying or doing something untoward, ridiculous or downright horrible.
Every year stories surface of lawyers and witnesses lobbing insults—or nearby objects—at each other during depositions when things get contentious. Although 2016 was an outlier in many ways, it followed suit when it came to lawyers and litigants behaving badly.
The following lowlights stand out:


Seeking sanctions demonstrates a certain amount of animosity toward an opponent. Trying to get your opponent arrested takes it to a whole different level.
The Florida Bar this year filed a complaint against Bernardo Roman III for allegedly making a false 911 call in an attempt to get his opposing counsel in a legal malpractice case locked up. Roman accused Paul Calli of Calli Law in Miami of deliberately shoving pistachios in the face of his assistant—who has a nut allergy—during a deposition.
According to the bar, Roman's assistant was actually forced to leave the deposition to seek care for an allergic reaction after the nuts were left out in a conference room by a judge. More than an hour after she left, Roman called police claiming Calli had pushed the pistachios in his assistant's face and placed them in her lunch. The bar claims that Calli would have been arrested if not for the intervention of two judges.
Roman allegedly fired his assistant after she refused to back up his story.


Coffee can provide a pick-me-up during a long, grueling deposition.
But picking up coffee and throwing it at opposing counsel mid-deposition probably takes the whole pick-me-up thing a little too literally.
That's what allegedly happened this summer in a case involving San Francisco-based startup Loop AI Labs Inc. and Italian tech company Almawave SRL, according to court filings and a transcript.
Venable partner Thomas Wallerstein, who represents Almawave, accused opposing counsel Valeria Calafiore Healy of Healy LLC of cursing at him and hurling her coffee toward him after a heated exchange at a deposition in Boston. Healy, who had earlier begun videotaping the deposition with her cell phone, claimed that Wallerstein was harassing her witness.
In her reply to Wallerstein's motion for sanctions, she also pointed out one key fact that he had omitted from his motion for sanctions: She was drinking iced coffee rather than the hot stuff.


After Peter Bertling of Bertling & Clausen in Santa Barbara, California, told opposing counsel that it wasn't "becoming of a woman" to raise her voice at him during a contentious expert deposition in a wrongful-death suit, he failed to take a judge's hint that he should say "I'm sorry."
In the sanctions proceedings that followed, Bertling wrote that he would apologize to opposing counsel "if I offended her by referring to her as a 'woman' instead of as an 'attorney.' " That didn't sit well with then-U.S. Magistrate Judge Paul Grewal of the Northern District of California. After Bertling failed to apologize in court papers and at a follow-up hearing, Grewal wrote that Bertling had only offered "a halfhearted politician's apology" and ordered him to donate $250 to the Women Lawyers Association of Los Angeles Foundation.
"A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common," wrote Grewal, who has since left the bench for an in-house position at Facebook Inc. "The bigger issue is that comments like Bertling's reflect and reinforce the male-dominated attitude of our profession."


When coaching a witness, it's probably best to stop short of hand signals.
Plaintiffs lawyers in a fraudulent-conveyance lawsuit in federal court in Dallas accused their opposing counsel of mouthing words to a witness during a deposition to influence testimony and using hand signals to signal when to stop answering. The defense lawyers, Gregory Shamoun and Stephen Khoury, also allegedly told their client to leave the room midquestion.
Shamoun and Khoury called the allegations against them "baseless" and "smear tactics" by the plaintiffs. But a federal magistrate judge partially granted a motion for sanctions against them, and ordered their client to sit for another deposition. The judge also awarded the plaintiff's request to be reimbursed for lawyer time and travel to the earlier deposition.
Maybe try Morse code next time.


And finally, a cautionary tale for lawyers who think that delay is just another word for depose.
When tobacco defense attorney Luis Suarez of Boies, Schiller & Flexner took more than five hours to depose a smoker's oncologist in a wrongful-death case in Florida, a state court judge said it was the "type of practice that gives the entire bar a black eye."
Plaintiffs had complained that Suarez, representing Philip Morris USA Inc., had spent two hours asking about treatment the plaintiff received before the doctor ever saw the patient and asked four times if the doctor understood that he was under oath. Brevard County Circuit Judge Charles Roberts actually gave defendants two additional hours to depose the doctor, but ruled that the tobacco defendants had to pay for the additional time themselves.
"The word needs to go out to the entire bar that these things cannot be countenanced by the court and they make us all look bad," said Roberts at a hearing in October.

My daughter's fog picture of Galveston today

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