Next up on Popehat's "lawyers behaving badly" day, attorney James W. Smith and the behavioral hazard of depositions.
A lot of the worst attorney conduct you'll encounter in the course of law practice happens in depositions. There are all sorts of factors driving it. Because depositions play out the facts and issues of the case through live testimony rather than dull written interrogatories, tensions and drama are high. The client is often there — either as the deponent, or to observe — which encourages certain lawyers to act up in an effort to earn their keep, the way a dog will bark extra hard at the mailman when his owner is in earshot. The structure of depositions lends itself to speaking objections, which are often calculated to irritate the other side. Many questioning tactics are specifically designed to throw a witness off her game, and thus draw more favorable testimony. Such tactics (like sarcasm, incredulity, bullying, sneering, and other bad-cop questioning tactics) irritate the hell out of everybody. So two attorneys who have cooperated and acted like the soul of gentility through most of a case can be at each other's throats after twenty minutes with a court reporter.
None of that explains the capacity of some lawyers like James W. Smith to act like unregenerate choads.
James W. Smith got smacked down recently by a court in Athens, Georgia for obnoxious fuckwittery during a deposition. Smith — taking the aggressive stance the way unethical attorneys often do — had moved to sanction his opponent, Andrew H. Marshall, for calling an early halt to a deposition. Smith, who was suing on behalf of a man allegedly hurt on a county landfill, apparently dismissed the case before it could be heard — perhaps sensing what was about to hit him. But the judge denied Smith's motion for sanctions and levied sanctions against him for his deposition conduct, calling it "so ignoble as to bring the legal profession in disrepute" [I think he means further disrepute] and sending the sanctions order to the state bar and local chief judges.
What did James W. Smith do to piss a judge off that much?
Well, he basically used the combat death of his opponent's son in an attempt to abuse and provoke his opponent.
At the fist session, via law.com and the sanctions order:
Mr. Smith: What's the little pin on your shirt mean? What's that little pin mean?
Mr. Marshall: It means I had a son that was killed in action serving his country.
Mr. Smith: So that gives you the right to browbeat my client?
Mr. Marshall: No. It has nothing to do with this deposition.
Mr. Smith: Well, fine then.
The Witness: Then why do you want to do that to another veteran, because you're mad at the United States?
Mr. Marshall: No, I'm not mad at the United States.
The Witness: Well, I'm proud of your son dying for me.
Mr. Marshall: Well, my son — that's not what I'm here to ask questions about.
The Witness: He was just asking you about the pin.
Mr. Marshall: Well, I told him what the answer was.
The Witness: OK. You don't have to be smart with me. But I thought we was talking about the dump.
Mr. Smith: Supposed to be. He's just trying to —
The Witness: Yeah. Intimidate somebody.
At the next deposition, after a legal dispute:
Mr. Marshall: We're terminating this deposition. I'll be seeking a court order requiring you to pay my attorney's fees as well as Mr. Smith.
Mr. Smith: Why don't you go jump in a lake, Drew? Why don't you go over there — Where's your pin today?
Mr. Marshall: I'll be serving you with —
Mr. Smith: Where's your pin today?
Mr. Marshall: Get out of my office.
Mr. Smith: Don't ever have another deposition set up here. Don't you hit me.
Mr. Marshall: I'm not going to hit you.
Mr. Smith: We got witnesses.
Mr. Marshall: Don't disrespect my son.
Mr. Smith: I didn't disrespect your son.
Mr. Marshall: Yes, you did.
Mr. Smith: That's a lie.
Next up: Marshall files an affidavit about the attorney fees incurred and the judge decides how much to sanction James W. Smith. I also suspect that the state bar will have some words for him.
James W. Smith, you fail as a lawyer and as a human being.
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