When Working with Opposing Counsel Isn’t Possible

This post is a study in what can happen when there is no working relationship between opposing counsel.  To be clear, there is no requirement you like opposing counsel.  There is a need however for a semi-functional working relationship because otherwise life becomes far too difficult and unreasonable.  Higginbotham v. KCS Int’l, Inc. is another case about what happens when that relationship does not exist.[1]

The basic facts were that Dr. Higginbotham alleged he was injured when the swim ladder on his yacht broke under his weight.[2]  The court’s decision starts by recounting the outright hostility between the plaintiff’s lawyer and one of the defendant’s lawyers.  Apparently there were quite a number of discovery disputes, so the court ordered them to appear in court to resolve them through negotiations.  “Little was accomplished during the day of ‘negotiations,’ and almost all of the disputes required resolution by the Court at day’s end.[3]  Each accused the other of various improprieties.  “Concerned that truly serious abuses of the discovery process may have occurred, I ordered counsel to deliver immediately copies of the deposition transcripts to my chambers.”[4]

Tit for Tat Deposition Limits Lead to Sanctions

Deposition 1 was of a defense expert.  There were faxes back and forth about the deposition’s duration.  Defendants seemed to think it would be one hour, Plaintiff disputed whether he ever agreed to it.  Regardless, after one hour the expert had to leave for other professional commitments and Defendant approved him leaving.  The deposition had not been completed though.  So at the next deposition, this time of a Plaintiff’s expert, Plaintiff directed his expert to leave after 90 minutes.[5]

As to the first deposition, defense counsel had correctly attempted to get an estimate as to the deposition’s duration.  This is permitted within the rules and also has a practical component.  However, plaintiff’s counsel avoided answering the question.  In that circumstance, defense counsel “should have filed a motion to modify the subpoena and notice of deposition to limit its length to one hour.”[6]  However, absent an order modifying the subpoena, the deposition’s only limit was to 1 day of 7 hours.[7]  This means the expert should have stayed.

As for instructing the defense expert that he could leave, the subpoena required the expert “to participate in the deposition until it was complete. His failure to do so could be treated as contempt of court.”[8]  “A lawyer breaches his professional obligation as an officer of the Court when he advises a layperson to disregard or to not fully obey a valid subpoena.”[9]

The first deposition did not merit sanctions, but plaintiff’s response at the second deposition did lead to sanctions.

But it is with respect to Mr. Mixter’s conduct in the deposition of Mr. Court that this Court issues its strongest criticism. Mr. Mixter’s conduct in Mr. Court’s deposition was egregious — much more serious than Mr. Boucher’s conduct in Dr. Buchholz’s deposition — because the record indicates that Mr. Mixter intentionally disregarded the rules to retaliate against Mr. Boucher for what occurred during Dr. Buchholz’s deposition. A mistake by an attorney in this context is serious business — intentional and retaliatory misconduct is absolutely inexcusable.[10]

There is a time and place for everything, but this wasn’t the time or place for this type of response. If you decide a tit for tat response is merited, follow the rules closely.  The judge may not like it but if you are within the rules then it is less likely to generate a problem with the court.[11]


[1] 202 F.R.D. 444 (D. Md. 2001).

[2] This fact made the good doctor instantly relatable to nearly all Americans.

[3] Id. at 445-47.

[4] Id. at 447.

[5] I skip the pontificating between counsel that the court included in its order.  While perhaps entertaining, it is not particularly useful for this post.

[6] Id. at 454.

[7] As discussed in the March 9, 2017 post.

[8] Id. at 455.

[9] Id.

[10] Id. at 456 (emphasis in original).

[11] As discussed in my May 13, 2019 post.