What the Rules Say and What People Do

This report of this opinion got me thinking once again about formalism and pragmatism in the ethics context. The case involves lawyers and deponents behaving badly, in the context of a larger series of disputes that Judge Easterbrook labels "a grudge match."

Here is an exchange from the deposition (assume the questions are irrelevant; the deponent is a lawyer):

Q [by Danner]. Mr. Gerstein, have you ever engaged in homosexual conduct? 
MR. WEBBER: Objection, relevance.
MR. KLAUS: I join. 
MR. WEBBER: I believe it violates Rule 30, and I'm instructing him not to answer the question. 
A. I'm not answering the question.
MR. KLAUS: I join the objection. 
Q. Mr. Gerstein, are you involved in any type of homosexual clique with any other defendants in this action? 
MR. WEBBER: Same objection. Same instruction. 
MR. KLAUS: I join the objection.

According to Judge Easterbrook, the instructions were improper because no they raised no issue of privilege.  The rules required the lawyer and deponent to walk out of the deposition and seek a protective order, instead.

Sure, the rules say that.  But the transaction costs of that approach are much, much higher than refusing to answer and letting the other side move to compel.  Everyone has to draft and respond to the papers, spend time in front of a magistrate arguing the silly thing, and then re-schedule a continuation of the deposition. 

Sure, the questioning attorney will probably bear the costs, because the questions are so far out of line, but it is much faster and cheaper to deny them any satisfaction and try to wrap things up rather than draw them out.  Maybe things have changed in the nine years since I left practice, but unless they have then lawyers will continue to do things in practical inexpensive ways even if strict compliance with the rules would demand another course, and no opinion is going to change that fact. 

DM

Comments

[Bill Freivogel]

Point well taken and well made. That was the single most bothersome rule for me when I was trying cases. I would be representing my client in a deposition, and the other lawyer would start asking questions calling for a legal conclusion. Unanticipated and right out of left field. My client simply did not understand what could happen if he answered those questions and did not know how to answer them (although he might have thought he did). And, you would be crazy to believe that the judge would uphold your objection at trial *every* time. First, I would ask my opponent to agree that whenever I made a certain kind of objection, we could defer the question until the end and proceed with other lines of questioning. That way, when we reached the end, and we still did not agree on my objection, we could go to court. If I won the argument, we were done. If the court ruled against me, I would have to bring my client back. But, boy, he would be prepared for those questions. But, I simply could not allow my client to answer those questions in the first instance, and I violated the rule on several occasions.