Can an Election Result Change Deposition Standards?

The ABA Journal reported last week about a potential three month suspension arising from a deposition that occurred on November 10, 2016, two days after the 2016 elections.  During the deposition the deposing attorney (Hillison) sought to determine whether the deponent “was using his insured vehicle for business purposes, which would not have been covered under his policy.”[1]  The lawyer, Cohn, objected and Hillison certified the question, leading to this exchange:

Cohn:  Okay. Then certify your own stupidity at this point.
Hillison:  Counsel, I’m not going to sit here and take insults from you.
Cohn:   At this point in time, a man who insults on a daily basis everybody he does business with has now been elected President of the United States. The standards have changed. I’ll say what I want.

It got worse.  When Hillison asked the deponent whether he had received any invoices or bills from Cohn, Cohn said, “Don’t waste your breath.” He then objected and instructed the deponent not to answer.  Hillison asked to certify the question and Cohn responded “Motion for sanctions; indicate that on the record. I’m going to get sanctions against your firm like you wouldn’t believe, bitch.”

At a later motion to compel on the topic, Cohn apologized, stating “the comments were intemperate, inappropriate and made in an ill-tempered reaction to what I perceived as bullying and improper questions of the plaintiff by Mrs. Hillison and a general angry tone by her that was quite visible to this counsel though it did not necessarily come out as clearly on the record.”  But the judge called the apology a “half-hearted or non-apology apology” and wasn’t persuaded.  The judge also characterized the idea that the outcome of a presidential election could alter the standards of professional conduct as “preposterous.”[2]

What can we learn from this?  Taking Cohn’s side for a moment, if his defenses were accurate it underscores how useful video recorded depositions are.  If the deposing lawyer was bullying the deponent or otherwise exceeding the bounds of the deposition, she wasn’t doing it with what she said and what she said is all the court reporter records.  Tone and demeanor typically only come through with an audio or video recording.  Worse, if she did exceed those bounds it did not give him a license to exceed those bounds too.

From Hillison’s side, I probably would have handled the situation similarly:  Make the record and keep going.  You’ve got everyone here, press forward with what you can, and then file the motion to compel after the deposition is done.  If things got much worse there is always the option to suspend the deposition and file a motion.  I’ve never done that, and hope I never have to.  The courts don’t want lawyers suspending depositions and the burden to suspend is pretty high.  The lawyer suspending the deposition had best be sure they are going to win the motion that will come afterwards because otherwise you may end up paying for the court reporter and more.

[1] Disciplinary Report & Recommendation at 3.

[2] There were other problems related to some briefing that was filed but that are irrelevant to this post.