Handling Difficult Opposing Counsel and Questionable Tactics,
Including Recent Decisions
November 21, 2014
Association of Corporate Counsel- Iowa Forum
Wilford H. Stone, Lynch Dallas, P.C., Cedar Rapids
INTRODUCTION
“There is great pride in being an Iowa lawyer, and describing someone as an Iowa lawyer almost
always connotes that lawyer’s high commitment to civility and professionalism. Of course, there
are stinkers in the Iowa bar, but they are few and far between.” Judge Mark Bennett, Abbott
Laboratories sanctions order, 299 F.R.D. 595, footnote 8(N.D. Iowa 2014)
TODAY’S SPEECH
1. Today’s focus is on handling difficult opposing counsel and their questionable tactics.
2. The Iowa Standards for Professional Conduct, states that a lawyer’s conduct should be
characterized at all times by personal courtesy, civility, and professional integrity in the
fullest sense of those terms. (33.1(1)). While this is ideal, we all know that often times
parties
fall
short
of
these
lofty
goals
of
civility.
See
http://www.iowabar.org/?page=ProfessionalConduct
DISCOVERY
1. There are multiple discovery abuses and conduct that opposing counsel can engage in to
frustrate your case, your client, and you.
2. FAILURE TO FULLY ANSWER/SUPPLEMENT DISCOVERY REQUESTS
a. In Lawson v. Kurtzhals, 792 N.W.2d 251 (Iowa 2010) the plaintiff had been
struck by a car while out riding his bicycle. He filed a personal injury suit against
the defendant. During discovery, the defendant filed interrogatories requesting
that the plaintiff detail the losses he incurred and the damages he was seeking, and
also asked the same questions at a later deposition. In both instances, the plaintiff
noted he had had some past medical expenses, and his clothing had been
damaged, but that he and his lawyer would supplement those responses to include
further damages at a later time. They never supplemented those answers. The
defendant then filed a motion in limine, asking the court to prohibit evidence from
being admitted at trial of plaintiffs damages not discussed in the discovery
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b.
c.
d.
e.
responses. The court ruled in favor of the defendants, and only allowed evidence
of past disclosed medical expenses and clothing damage to be admitted at trial.
Moral:
The cases state that under Iowa Rules of Civil Procedure 1.503(4)
parties are required to supplement these responses, and the duty to supplement is
on the party answering the request.
In Raye v. Central Iowa Hosp. Corp., WL 31757262 (Iowa Ct. App. 2002) a
patient brought a medical malpractice claim against a hospital and its physicians.
The hospital and defendants asked for medical records and information prior to
the alleged date of injury and the patient failed to provide any information and
even affirmatively stated he had previously had no serious injuries or conditions.
It later came to light during depositions that the patient previously had a serious
medical problem (hernia and abdomen bulge) which had been operated on prior to
the date of the alleged injury. The trial court sanctioned the plaintiff by dismissing
the claim. The appeals court reversed the trial court’s dismissal, but ruled that
sanctions were appropriate and remanded for reconsideration. The Court noted
that once discovery was supplied, it was the plaintiff’s ongoing duty to
supplement any incomplete and correct any inaccurate responses under the IRCP
1.503(4).
This violates Iowa Rule of Professional Conduct 32:3.4 Fairness to Opposing
Party and Counsel, which states that a lawyer shall not fail to make a reasonably
diligent effort to comply with a legally proper discovery request by an opposing
party.
Misconduct involving misrepresentations and candor towards the tribunal. Iowa
Supreme Court Attorney Disciplinary Board v McGinness, (Iowa 2014)(attorney
suspended for six months after he photocopied old certificates of service in an
attempt to deceive opposing counsel into believing he had served him with
discovery requests when he had not, and then also told the court that he had not
done so and “continued to hide from the district court what he knew to be the
truth.” Court was also upset because this incident caused a completely
unnecessary hearing about a “collateral matter completely unrelated to the merits
of the underlying lawsuit.” While the court on appeal noted McGinness “fell on
his sword,” and unequivocally conceded his conduct and did not attempt to
explain it away by blaming others or citing “vague” mitigating circumstances, it
also found the “persistence” of his conduct was a “remarkable aggravating factor”
and that he failed to self- report his conduct.)
“Predatory” discovery: Another form of attorney abuse is over-discovery, or the
use by the requesting party of a blizzard of document requests, interrogatories,
and deposition notices. The responding party, in turn, may attempt to bury her
opponent in boxes of documents. Both gambits allow a litigant to externalize the
costs of discovery by forcing her opponent to bear a disproportionate cost. This
term comes from Judge Posner's opinion in Marrese v. Amer. Academy of
Orthopedic Surgeons, 726 F.2d 1150, 1162 (7th Cir. 1984). Predatory discovery,
by definition, is "sought not to gather evidence that will help the party seeking
discovery to prevail on the merits of his case but to coerce his opponent to settle
regardless of the merits .. " Id. at 1161.
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DEPOSITIONS
1. Anyone that has been involved with a deposition is likely to have witnessed some bad
behavior: useless objections, angry posturing, witness coaching, or something similar.
We all know we have to be there, so how do we deal with these situations?
2. In Security National Bank of Sioux City, Iowa v. Abbott Laboratories, No. C 11-4017MWB Memorandum Opinion (U.S.D.C. N. Dist. IA. West. Div. 2014), Judge Bennett
honed in on the issue of deposition objections. In this complicated products liability
case, a lawyer from outside of Iowa engaged in some difficult and questionable
behavior. Judge Bennett noted this bad behavior came in three categories: an
astounding number of form objections without recognized basis for objection,
coaching the witness, and excessive interruptions causing the fair examination of the
witness to be frustrated and delayed.
a.
First, the visiting lawyer objected to the form of the examiner’s question at least
115 times, and could be found on nearly 50% of the pages of the deposition
transcripts. Sometimes the lawyer followed the form objection with a particular
basis, such as speculation or narrative, but often she simply objected by stating
“form,” leaving the opposing counsel to guess as to the basis of the objection.
i. Example:
ii. Q: Would it be fair to say that in your career, work with milk fortified has
been a significant part of your job?
iii. COUNSEL: Object to the form of the question. “Significant” is vague and
ambiguous. You can answer it.
iv. A: Yeah, I can’t really say it’s been a significant part. It’s been a part of
my job, but “significant” is rather difficult…
Judge Bennett noted that is his view, objecting to “form” merely vaguely
suggests that the objector takes issue with the question, but it not actually
a grounds for an objection, nor does it preserve an objection- it merely
refers to a category of objections that are appropriate and should be used:
leading questions, lack of foundation, assumption of facts not in evidence,
mischaracterization or misleading question, non-responsive answer, lack
of personal knowledge, testimony by counsel, speculation, asked and
answered, argumentative question, and witness answers beyond the scope
of the question.
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Other proper objections would include privilege and confusing questions.
On the other hand, improper objections include: irrelevant; hearsay; and
calls for opinion; and speaking and coaching objections.
Example:
b.
i. “Objection, form of the question” is an improper objection.
ii. “Objection, lack of foundation” is a proper objection.
iii. “Objection, opposing counsel has not previously appropriately laid out the
foundational elements to prove that the document he is referring to is an
accurate and verifiable document before asking my client this question” is
an improper objection.
iv. Objection, answer only if you know is an improper objection.
v. Objection, do not guess or speculate is an improper objection.
vi. Objection, you can answer if you understand the question is an improper
objection.
vii. Objection, the document speaks for itself is an improper objection.
c.
d.
e.
Judge Bennett explicitly stated “lawyers should consider themselves warned,”
unspecified form objections are improper and will invite sanctions if lawyers
choose to use them in the future.
Second, Judge Bennett turned to witness coaching. Under Federal Rule 30(c)(2)
deposition objections must be stated concisely and in a nonargumentative and
nonsuggestive manner. Lawyers are strictly prohibited from making any
comments that might suggest or limit a witness’s answer to an unobjectionable
question. Here, Judge Bennett found the visiting lawyer’s frequent interjections
often prompted witnesses to give particular desired answers to the examiners
questions in a variety of ways- the lawyer even went so far as to answer for her
witness, or audibly disagree with her witness’s answer.
i. Example:
ii. Q: (Referring to a document) Is that accurate or is there something that
they… just chose not to put…
iii. COUNSEL: If you know. She didn’t write this.
iv. A: Yes, I didn’t write this.
v. Example:
vi. Q: Do you know if that test was performed in Casa Grande or Columbus?
vii. A: I don’t.
viii. COUNSEL: Yes, you do. Read it.
ix. A: Yes…
Third, Judge Bennett focused on the grossly excessive number of interjections and
objections that visiting counsel made during the depositions. Her name appeared
between one and three times per page on average, and nearly all of these
appearances were unwarranted and unnecessary.
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f.
g.
Sanctions: Judge Bennett went on then to require the visiting lawyer to produce a
training video for her entire firm, explaining the holding and rationale of the
opinion and its views on proper deposition behavior and objections, without any
help as to the creation of its contents. She then had to send it to all attorneys in her
firm nationwide(but is not required to make it public.) We have all been warned.
Note- the court was upset at the “coaching,” objecting, for example, that a
question was confusing and then the witness answers I can’t answer the question
because it was confusing.”
h.
By the way, the sanctioned defense counsel won at trial and the Court was quite
complimentary of their conduct at trial: “Despite Counsel’s deposition conduct, I
was greatly impressed by how Counsel performed at trial. Unlike the “litigators” I
discussed earlier, Counsel was extremely well-prepared, had clearly mastered the
facts of this case, and did a great job of incorporating electronic evidence into
Counsel’s direct- and cross examinations. Those aspects of Counsel’s noteworthy
trial skills, expertise, and preparation are laudable, but they do not excuse
Counsel’s pretrial conduct. “
i.
Judge Bennett is not alone: In MAG Aerospace Industries, Inc. v. B/E Aerospace,
Inc., U.S.D.C. Central District of California (Order 2014)-- A judge's decision
declared a deposition a "train wreck" because defense counsel attorney repeatedly
objected that the opposing counsel's questions were too vague.
The attorney's numerous objections during the deposition of an employee of B/E
Aerospace Inc., disrupted any worthwhile examination and "reflects poorly on the
entire judicial process," U.S. Magistrate Judge Frederick Mumm. Judge Mumm
said that during the seven-hour deposition, counsel for patent owner MAG
Aerospace Industries Inc. asked the B/E employee "perfectly clear (albeit broad)"
questions about B/E's allegedly infringing vacuum toilet bowls used in aircraft,
but the employee claimed he did not understand common words like "what" and
"have." Opposing counsel "hopped on the bandwagon" and began objecting to
the questions, the judge said. He chastised the attorney for "continually
interposing inappropriate objections" and said the attorney and the witness acted
"like a tag team," repeatedly asking MAG's attorney to be more precise. "The
witness and his counsel may have taken some temporary pleasure in frustrating
plaintiff's counsel’s ability to obtain any information from the witness, but the
judicial process and the public's perception of it suffers," the judge wrote.
The Court granted plaintiff’s ex parte motion, and ordered that defense counsel
would be limited to three objections, and would not be allowed to object as to
vague, lack of foundation, hearsay or a variety or other objections, nor interrupt
questioning by the plaintiff except for the limited reasons allowed. The Defendant
also was ordered to reimburse plaintiff for the attorney and court reporter fees for
j.
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the entire initial deposition session, as well as the costs of preparing the ex parte
motion.
3. In Van Pilsum v ISU, 152 F.R.D. 179(U.S.D.C. S.D. Iowa 1993) plaintiff’s counsel
took it upon himself to restate defense counsel’s questions in order to clarify them,
even though, according to the court, plaintiff clearly had no difficulties understanding
or communicating in the English language. Plaintiff’s counsel coached his witness,
make inappropriate objections, and attacked defense counsel’s ethics, litigation
experience, and honesty. The court noted that Plaintiff’s counsel was responsible for
over 20% of the lines of deposition testimony, even though defense counsel was
asking the questions. The court noted that these “Rambo –style” tactics, which may
be client and ego satisfying, will not be tolerated by the courts. The court granted
sanctions, granting a protective order and appointing a discovery master to oversee
depositions, all now required to take place in the federal courthouse. The court stated
that such acrimony does not serve clients or the justice system, but instead
necessitates the provision of day care for counsel who, like small children, cannot get
along and require adult supervision.
4. In Re Fletcher, 424 F.3d 783(8Th Cir. 2005)(Missouri case- attorney suspended for
three years after finding that he engaged in a pattern and practice of conduct including
conduct during depositions described as “combative” and “macho posturing” in part
because of comments that were “belittling” and “threat-like.” He also selectively
quoted deposition testimony that grossly mischaracterized deponents’ statements and
conduct that went beyond zealous representation into deceptive and misleading
practices.)
5. Another example of a different type of bad deposition and attorney behavior comes
from Paramount Communications Inc. v. QVC Network, Inc., 637 A.2d 34 (Delaware
1993) The court noted that the misconduct in this deposition demonstrates an
astonishing lack of professionalism and civility that it is worthy of special note here
as a lessor for the future of conduct not to be tolerated or repeated. During the
deposition, an attorney names Mr. Jamail abused the privilege of representing a
witness in that he improperly directed a witness not to answer questions, was
extraordinarily rude, uncivil, and vulgar, and he obstructed the ability of the examiner
to elicit testimony to assist the Court.
i. Example:
ii. MR. JOHNSTON: Okay. Do you have any idea why Mr. Oresman was
calling that material to your attention?
iii. MR. JAMAIL: Don't answer that. How would he know what was going on
in Mr. Oresman's mind? Don't answer it. Go on to your next question.
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iv. MR. JAMAIL: He's not going to answer that. Certify it. I'm going to shut
it down if you don't go to your next question.
v. MR. JOHNSTON: No. Joe, Joe—
vi. MR. JAMAIL: Don't “Joe” me, asshole. You can ask some questions, but
get off of that. I'm tired of you. You could gag a maggot off a meat wagon.
Now, we've helped you every way we can.
vii. Example:
viii. MR. JAMAIL: Now, you want to sit here and talk to me, fine. This
deposition is going to be over with. You don't know what you're doing.
Obviously someone wrote out a long outline of stuff for you to ask. You
have no concept of what you're doing. Now, I've tolerated you for three
hours. If you've got another question, get on with it. This is going to stop
one hour from now, period. Go.
ix. MR. JOHNSTON: Are you finished?
x. MR. THOMAS: Come on, Mr. Johnston, move it.
xi. MR. JOHNSTON: I don't need this kind of abuse.
xii. MR. THOMAS: Then just ask the next question.
xiii. MR. JOHNSTON: All right. To try to move forward, Mr. Liedtke, ... I'll
show you what's been marked as Liedtke 14 and it is a covering letter
dated October 29 from Steven Cohen of Wachtell, Lipton, Rosen & Katz
including QVC's Amendment Number 1 to its Schedule 14D–1, and my
question—
xiv. A. No.
xv. MR. JOHNSTON: —to you, sir, is whether you've seen that?
xvi. A. No. Look, I don't know what your intent in asking all these questions
is, but, my God, I am not going to play boy lawyer.
xvii. A: Okay. Go ahead and ask your question.
xviii. MR. JOHNSTON: —I'm trying to move forward in this deposition that we
are entitled to take. I'm trying to streamline it.
xix. MR. JAMAIL: Come on with your next question. Don't even talk with this
witness. You understand me? Don't talk to this witness except by question.
Did you hear me?
xx. MR. JAMAIL: You fee makers think you can come here and sit in
somebody's office, get your meter running, get your full day's fee by
asking stupid questions. Let's go with it.
a.
The Court noted that it found this behavior to be outrageous and unacceptable.
The Court also noted that trial courts are “but a phone call away” and would be
responsive to the plight of a party and its counsel bearing the brunt of such
misconduct. They stated that staunch advocacy is proper and fully consistent with
the finest effectuation of skill and professionalism, but this type of behavior is not
in the best interest of the client.
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i. This conduct violates Iowa Standard for Professional Conduct 33.2(22),
which states that attorneys will not engage in any conduct during a
deposition that would not be appropriate in the presence of a judge.
6. Cases with multiple witnesses and counsel : ask the court to establish deposition
protocol. See, e.g. In re Stratosphere Corp. Securities Litigation, 184 F.R. D. 614(D.
Nev. 1998)(Court ordering depositions to be videotaped; that cell phones were to be
turned off and no smoking or firearms were permitted; all objections were to be made
in strict accordance with FRCP 30(d); and that the lawyers were not to instruct a
witness not to answer but to seek court intervention)
TRIAL AND MOTIONS
1. In Gilster v. Primebank, 747 F.3d 1007 (U.S. Ct. App. 8th Circ. 2014)(Riley,
Wollman and Loken), a plaintiff brought a sexual harassment claim against her
manager at a bank in Sioux City. Witness credibility was a major issue in the trial, as
the testimony of the plaintiff and other witnesses as to the actions of the parties was
the primary source of evidence for the plaintiff’s claims. Following a six day jury
trial, plaintiff was awarded plaintiff over $900,000 in damages. The employer
appealed, claiming plaintiff’s counsel made closing remarks that were so “ plainly
unwarranted and clearly injurious” that they warranted a new trial.
a. In her rebuttal closing argument, plaintiff’s counsel stated:



PLAINTIFF COUNSEL: Mindy Gilster had the strength to make that
complain back on July 2, 2009. I sure didn’t. Back in 2006 I was sexually
harassed by a professor at Drake, but I was on my way out…
DEFENSE COUNSEL: Objected to the inclusion of these statements ( but
was overruled by the court.)
PLAINTIFF COUNSEL: But I refused to stand up for myself. It takes
great strength and fearlessness to make a complaint against your
supervisor. Given my calling as a civil rights lawyer, I am constantly
amazed by the strength and courage that my clients have when facing their
employers and supervisors, the people who hold all the power. It is my
sincere hope that one day my daughter, my friends, my sisters will live in
a community where they will not be silenced by fear. And you can ensure
this happens with your verdict. I am fortunate that in the course of my life
and in my work I’ve had the opportunity to represent these women who
are so strong to make these complaints… I’ve had the honor of
representing… Mindy Gilster. But the power and responsibility I’ve held
on Mindy’s case… is now over, and I am particularly fortunate that I can
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give the power and responsibility for correcting injustices like those we
have seen in this courtroom to somebody else. I give it to you.
 Example
 I assure you Mindy Gilster did not make up the fact that her uncle sexually
abused her… It was not a fact she brought in here to arouse sympathy or
ask for more money. It’s just the facts, folks.
b. The Court noted that counsel’s rebuttal argument included numerous comments
that clearly violated Iowa Rule of Professional Conduct 32:3.4, which states that a
lawyer shall not in trial allude to any matter that will not be supported by
admissible evidence, assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the justness of a cause or
the credibility of a witness. Improper vouching permeated counsel’s rebuttal
argument.
c. These remarks were not minor aberrations made in passing, but a deliberate
strategic choice to make emotionally-charged comments at the end of a closing
argument when opposing counsel would have no opportunity to respond and it
would have the greatest emotional impact on the jury.
d. The Court stated that counsel’s recounting of her personal experience, facts not in
evidence, was aimed at enhancing her client’s credibility. The Court noted that the
cardinal rule of closing argument is that counsel must confine comments to
evidence in the record and to reasonable inferences from that record.
e. These actions made the improper comments unfairly prejudicial and required
remand for a new trial. The employer’s attorney objected at the time but was
overruled by Judge Bennett.
f. The 8th Circuit stated it was not an action it took lightly, for it meant plaintiff
was “deprived of a favorable jury verdict,” and that all the witnesses may need to
endure what was surely a stressful, unpleasant trial. However, “when a lawyer
departs from the path of legitimate argument, she does so at her own peril and that
of her client.”
2. In Rankin v. City of Niagara Falls, 293 F.R.D. 375 (U.S.D.C. W.D. New York 2013),
an attorney appeared three times before the court to request extensions of time to
respond to summary judgment motions. She claimed she had in good faith intended to
timely file opposition, and that she in good faith believe she had a substantial and
legitimate basis for opposing the motions. Later it became clear she had not even
substantively reviewed the motion or related record and she had serious doubts about
the legal basis for opposing the motion. The Court imposed monetary sanctions and
publicly reprimanded the attorney.
a. This violates Iowa Rule of Professional Conduct 32:3.3, which states that a
lawyer shall not knowingly make a false statement of fact or law to a tribunal.
b. This also violates the Iowa Standards for Professional Conduct 33.2(15), which
states that requests for an extension of time will not be used solely for the purpose
of unjustified delay.
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3. In Monsanto Co. v. E.I. Du Pont de Nemours and Co., 748 F.3d 1189 (U.S. Ct. App.
Fed. Circ. 2014) the defendants in a patent trial made a defense and counterclaim that
they had not understood the terms of their contract to prohibit the stacking of genetic
materials in pesticides. During later discovery it was discovered that the defendant’s
in-house counsel and executives knew of the prohibitions. The Court imposed
sanctions on the defendant and dismissed its defense and counterclaims and awarded
attorney fees for the defendant’s bad faith lack of candor to the court, and engaging in
vexatious conduct.
4. In Murphy v. Aurora Loan Services, LLC, 518 Fed.Appx. 511 ( 8th Cir. 2013) an
attorney filed a memorandum opposing a motion to dismiss based on theories he
knew or should have known were already rejected by the lower court.. The court
sanctioned the attorney for filing frivolous claims.
a. This violates Iowa Rule of Professional Conduct 32:3.1 Meritorious Claims and
Contentions- a lawyer shall not bring or defend a proceeding or assert or
controvert an issue therein, unless there is a basis in law and fact for doing so that
is not frivolous, which includes a good faith argument.
5. In a Linn County case, an opposing attorney attempted to manipulate documents
produced by us and arrange them in a different order as if they were all one document
in one exhibit. Fortunately, we had labeled all documents produced and the court
could see that they were out of order. Motion in Limine granted.
STRATEGIES TO OVERCOME THIS CONDUCT
ATTITUDE







Don’t fight fire with fire, don’t allow yourself to be dragged down to their level
Judges are hesitant to punish a party for bad behavior when the misconduct seems mutual
The whole point of the bad behavior must be to knock you off-kilter, don’t allow them to.
Kill them with kindness
Never put anything in writing or say anything on a recording you would be embarrassed
for a judge to read or hear.
Don’t accept abuse or inappropriate behavior
Inform opposing counsel they can treat you respectfully or suspend communication
DOCUMENTATION


When you discover you are dealing with difficult opposing counsel, leave nothing to the
unwritten word outside of the court or court reporter.
Inform opposing counsel that you will be documenting all occurrences of bad behavior
 When doing so be objective, facts only
 Document abusive language or actions
 Document broken promises and deadlines
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


Write letters to recap all calls and conversations- once your opponent realizes you are
doing so it may prevent further outbursts
Confirm all verbal agreements in writing
Don’t allow depositions to go off the record without the permission of all attorneys
 Make a record if you are going to report it: “That is not what I said” or
“Please let me finish” or “Let the record reflect Mr. Stone stood over my
client and waved his fist during his last statement.”
PREPARATION

Prepare your clients for potential bad behavior
 Inform them of possible opposing party techniques- sarcasm, innuendo,
aggression, etc.
 Don’t let your client engage in similar conduct

Prepare yourself
 Preparation breeds confidence
 Know the Rules of Civil Procedure
 FRCP 26, 34, 37 Discovery
 IRCP 1.501


Always have them handy, as well as the court’s phone number
Pick your battles
-Let some things go. Not every point needs to be argued to death, especially
minor disagreements over extension requests; joint motion language; or deposition
locations.
INTERVENTION







These are last resort scenarios, when the opposing party’s behavior cannot be curbed or
your fear their behavior may prejudice your client’s case
Preserve error and timely object
Call to court
Sanctions
Protective Orders
o IRCP 1.504
o FRCP 26(c)
Motions in Limine
o Asking the court to rule on evidentiary issues and admissibility
Professional Conduct Complaint- Disciplinary Commission
o Iowa Rules of Professional Conduct 32:8.3 states that a lawyer who knows that
another lawyer has committed a violation of these rules shall inform the
appropriate professional authority.
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