We aren't supposed to spit, scratch and yell during lawsuits.  Most of us do our very best to be as civil as possible.  I have numbers of friends I've made who are on the other side.  They are the ones who nick named me velvet hammer because "you are nice and soft spoken and will smile as you are pounding on us relentlessly."  Donna and I will most likely not ever make it to the friend category.  Miracles can happen, but she bristled at me as soon as I walked into the room.  And I don't even know her.

Donna is threatening to take me to court and ask that I be fined for bad behavior.  She says I interfered with her  deposition when I told my client she didn't need to answer repetitive questions that I felt had finally crossed the line and were designed to harass and intimidate.   This issue presents an interesting dilemma for attorneys - because while we usually get along, sometimes we don't.  Depositions are taken outside of court so no judge is there.  What happens when we disagree and there's no one to decide who is right?   This happened in Longview which is a 2.5 hour drive from Seattle where we were from.  So it wasn't as easy as running over to the courthouse.  Anyway, here is the letter I sent to Donna.  You be the judge - who is right.xq

Dear Donna:

Thank you for your letter of September 13th received the 14th giving me a deadline of the 22nd.  I have now reviewed the deposition and respond to your letter threatening me with a motion to compel and for sanctions.  I appreciate the opportunity to respond before you do so.

On page 63 your question was “Did you see any ice” and my response was to object: “Already answered.  Badgering the witness.  Instruct her not to answer.”  I rarely instruct witnesses not to answer questions and cannot remember the last time that I did so.  Here is what led up to this unusual objection and instruction:

•  She said it was snowing when they arrived (31)
• You asked why that was a concern (31)
• She said it was snowing when they arrived (31)
• You asked why that was a concern (32)
• She said her husband was 80 and that was a concern (32)
• You commented that she couldn’t remember if there was snow on the stairs (38)
• She said she was sure there was snow on the steps (38)
• You asked if there had been an accumulation of snow on the ground or around (39)
• She said there was some (39)
• You asked how much (39)
• She said there was some she couldn’t answer that (39)
• You asked if  there was an inch or flurries not sticking (39)
• She said she didn’t remember the snow conditions, she wasn’t looking at measurable snowfall(39)
• She said the stairs were icy Friday Dec 4 (40)
• She doesn’t recall if there was snow on the stairs (40)
• You asked her what the temperature was (41)
• She said cold (41)
• You asked what degree it was (41)
• She didn’t know (41)
• You asked if there was visible ice on the stairs (41)
• She said cold and icy (41)
• You asked why did she say icy (41)
• She said because it was cold and icy (41)
• You said what was cold and icy (41)
• She said the sidewalks (41)
• You asked if she saw ice on the sidewalks (41)
• She said yes (41)
• You asked where the ice was (42)
• She said on the approach to the motel (42)
• You asked where on that sidewalk there was ice (42)
• She said it was snowing, cold and icy  (42)
• You asked where on the sidewalk in front of the hotel was there ice (42)
• She said getting out of the car and going into the motel (42)
• You asked where else did she see ice (42)
• She said – the only thing she could say it was snowy, cold and icy (42)
• You asked where else on the sidewalk she saw ice (42)
• She said going and coming to the rooms it was snowy, cold and icy (42)
• You asked her if there was ice on the photo ex 1 (42)
• She said yes it was snowy, cold and icy (43)
• You asked if there was ice on the sidewalk leading from the parking lot towards the building (43)
• She said she was carrying luggage and couldn’t answer that but it was snowy, cold and icy (43)
• You asked again if there was ice on the sidewalk from the parking lot (43)
• She said they were shlepping thru icy, snowy stuff (43)
• You asked if that was slush (43)
• She said can’t tell you if there was ice underneath the snowy slushy stuff (43)
• You asked if she looked at Ex 1 again that leads to a corner was there ice (43)
• She said she didn’t know if there was ice underneath the snowy slush stuff (43)
• You asked if there was ice on the stairs (43)
• She said she couldn’t tell you if there was ice underneath the slushy snowy stuff (44)
• You asked if when she left her room to go to dinner 12/4 was there ice on the stairs (44)
• She said it was wet, sloshy snow, doesn’t know if ice underneath (44)
• You asked if there was ice on the sidewalk when she went to dinner 12/4 (44)
• She said her answer was the same – wet, sloshy snow don’t know if ice underneath it (44)
• You asked how deep the wet sloshy snow was (45)
• She said she couldn’t answer that (45)
• You asked if when she returned to room 12/4 after dinner if there was ice (52)
• She said she didn’t recall (52)
• You asked her what the temperature was (52)
• She didn’t know, said it was cold (52)
• You asked what the condition of the stairways was (53)
• She said the same as it was earlier (53)
• You asked if that was slushy snow (53)
• She said that you could see (53)
• Youa sked if there was accumulated snow on the ground (54)
• She said it was slushy (54)
• You asked if the next morning 12/5 whether there was visible ice on the stairs (54)
• She didn’t recall (55)
• You asked when returned to room that afternoon what was temperature (59)
• She said cold (59)
• You asked if it was above freezing (59)
• She said she had no way of knowing that (59)
• You asked what the conditions were on the sidewalks going back to room (59)
• She said it was cold dark and icy (60)
• You asked if was above freezing that day (60)
• I objected as asked and answered (60)
• She responded that she had no knowledge. (60)
• You asked if when she went back to her room if it was above freezing (60)
• She said she didn’t know (60)
• You asked if she saw ice on the sidewalks that led from the building towards her room (60)
• I objected (60)
• You rephrased whether there was ice on the sidewalks as she walked back to her room (60)
• She answered that all she could say was it was very cold and it was very dark.  If there was ice, she probably would not have been able to see it (60)
• You asked her again wether there was ice on the sidewalk as she walked back to her room (61)
• She said – that you normally don’t see ice that late at night when you’re walking on the sidewalk (61)
• You asked if the sidewalk was dry or wet (61)
• She said it was cold, dark and icy (61)
• You asked how she knew it was icy, why did she say it was icy (61)
• She said because it was very cold and it was very dark and those are conditions for ice (61)
• You asked why cold and dark was a condition for ice. (61)
• I objected that you were arguing with the witness, she’s done her best to answer, let’s move on (61)
• You said you were not going to move on, it was your deposition and you were entitled to ask questions and I could not make speaking objections  (61)
• I said you were arguing with the witness, I was not going to allow you to keep doing that and we were going to break for lunch (62)
• You said we were going to keep going (62)
• I said, we would break for lunch in 5 minutes which would have been 12:00 (62)
• You said you were going to get your questions answered (62)
• You said – when she went back to the room at 4 on 12/5 did she see any ice on the sidewalk leading to the room (62)
• I objected – asked and answered (62)
• You told her to go ahead (62)
• She said her answer was the same, it was cold dark and icy (62)
• You asked her if she saw any ice (62)
• I objected as already answered.  Badgering the witness.  Instruct her not to answer. (63)

At that point, you went off the record and attempted to call the assigned judge.  I will not recite the remaining questions that you asked about snow and ice during the deposition but they are in the record.

After reading the transcript I remain quite firm in my belief that you were engaging in deposition practices designed to confuse and intimidate our 67 year old plaintiff.  She did her best.  But her answers were not good enough for you.  So you resorted to the technique of multiple repetition in order to wear her down.

As I said at the begining of this letter, I rarely will instruct a witness not to answer a question – almost always it is due to a privilege issue.  In this case, you crossed the lines and the plaintiff was becoming visibly upset.  I believe I would have failed in my duties to represent and protect the plaintiff, had I not stood up for her at that point.

Under these circumstances I am not fearful of your threat to bring a motion for sanctions against me.

VTY
K3

If she brings a motion, I'll add a postscript to tell you if I got in trouble or if she did.