Tuesday, June 5, 2018

Would you Believe . . .

From 1965 to 1970, there was a television series satirizing secret agents. The bumbling Maxwell Smart managed to bring a Lucille Ball slapstick response to the James Bond and Derek Flint. Don Adams did for spying what Ball did for candy making. It was revived in the 2000s with a Steve Carrell and Anne Hathaway combination. 

Maxwell Smart made it a habit to be cornered or captured. When he found himself thus, he would make outlandish statements that included a catch-phrase "would you believe," in trying to bluff himself free. They would begin grandiose, and devolve quickly. 

From the 1960s, one is:
Smart: At the moment, seven Coast Guard cutters are converging on us. Would you believe it?
Mr Big: I find that hard to believe.
Smart: Hmmm . . . Would you believe six?
Mr Big: I don't think so.
Smart: How about two cops in a rowboat?
From 2008, one is:
Smart: I think it's only fair to warn you, this facility is surrounded by a highly trained team of 130 Black Op Snipers.
Siegfried: I don't believe you.
Smart: Would you believe two dozen Delta Force Commandos?
Siegfried: No.
Smart: How about Chuck Norris with a BB gun?
That phrase "would you believe" came to me recently when I was reviewing a few depositions provided to me for use in a presentation. I found myself asking "would you believe" an "attorney would say . . . ?" Reading these exchanges led me to think about a couple of things, stress and professionalism. Certainly, we all strive to be the consummate professional. Various organizations present awards periodically for exceptional professionalism. But, unfortunately, stress and perhaps exhaustion can sometimes cause our tempers to boil over, or our patience to wear thin. 

Thus, I read the following (Would you Believe?):
ATTY ONE: Your letter will speak for itself, counsel.
ATTY TWO: Yes, it will. And your letter will speak for itself, too .
ATTY ONE: Because you drafted it, and he didn't touch it. He only put in a few words.
ATTY TWO: that's a mischaracterization. You drafted your letter, and I prepared a questionnaire, which was a question and answer.
ATTY ONE: okay. I'm not arguing with you. 
(Would you believe . . . counsel actually was arguing with you, by saying counsel was not?)
ATTY TWO: Objection, asked and answered in different manners and now there's a mischaracterization and the doctor can't even make all of those recommendations. He made two recommendations, and that's it.
ATTY ONE: Do you have a nonspeaking objection to make, counsel?
ATTY TWO: Like yours?
ATTY ONE: That 's your only answer, isn't it? That you can't say I'm sorry, I'm making a speaking objection --
ATTY TWO: You constantly throughout the whole depo made speaking objections. Did you ever apologize?
ATTY ONE: I'm not apologizing.
(Would you believe . . . speaking objections countered by speaking objections? A professional argument of two wrongs making a right?) 

(Would you believe . . . Perhaps that moment might have been ideal for both attorneys to stop, breathe, and apologize to each other?) 
ATTY TWO: Are you finished? I have a few follow-ups.
ATTY ONE: A few? Does that mean an hour, ten minutes?
ATTY TWO: Are you finished?
ATTY ONE: I think so. You have how much longer?
ATTY TWO: Yes or no?
ATTY ONE: I think I'm done.
ATTY TWO: How many times are you going to ask the same question?
ATTY ONE: Really?
ATTY TWO: Yes. Are you done?
ATTY ONE: Ask your questions, attorney TWO.
ATTY TWO: Yes or no? Are you done?
ATTY ONE: I just said yes.
ATTY TWO: No, you did not say yes.
(Would you believe . . . an irrelevant argument about whether one is finished or not, unless one actually says "yes?" A professional's argument of meaningless semantics?) 
ATTY ONE: All right. You just sign forms that you don't know what you sign? I get it, to get out of your lie that you told. And now to try make me look bad.
WITNESS: I'm not lying to you.
ATTY ONE: No, of course not, you're not lying.
WITNESS: I'm not lying.
ATTY ONE: No, of course not. You filled out a form knowing it was wrong to ask for it under Workers' Comp, but you did it anyway.
WITNESS: I did it for her.
ATTY ONE: And I don't care what your motives were. You lied. Why is it so difficult -- why is it --
WITNESS: You're really a jerk.
ATTY ONE: No, you're a jerk, Doctor. You lied on the form 
(Would you believe . . . sarcasm to the doctor, name calling, accusations?)

(Would you believe . . . a doctor calling an attorney a jerk?)

(Would you believe . . . schoolyard exchanges and pettiness?)
ATTY ONE: How long have you been doing this?
WITNESS:I don't recall.
ATTY ONE: Years?
WITNESS: I don't recall.
ATTY ONE: You don't recall if it's a year, two years, three years?
WITNESS: I don't recall. If you want to talk about -- if you want to talk about
ATTY ONE: Is there something wrong with your memory? No, I want to talk about why you lied on that DWC-25.
(Would you believe . . . like a dog with a bone, just keep digging up that "lie" allegation?)
ATTY TWO: I'm talking-- Claimant's counsel's behavior is unprofessional --
ATTY ONE: You're blocking me from the -- you're blocking me?
ATTY TWO: -- and despicable - -
ATTY ONE: No, I'm sorry, you're not.
ATTY TWO: And I'm going to move--
WITNESS: Do not bump her. Stay over there.
ATTY TWO: -- for sanctions for Claimant's attorneys behavior with Dr. _________.
ATTY ONE: I didn't bump you.
WITNESS: Stay over there.
ATTY ONE: Don't tell me what to do. I'll stand wherever I want.
WITNESS: No, you will not bump anybody.
ATTY ONE: I didn't bump anybody.
WITNESS: You just did.
ATTY ONE: No, I didn't. I stood right next to her.
ATTY TWO: Yes, you did.
ATTY ONE: I stood right next to here.
WITNESS: You stepped right in front her
ATTY ONE: I stood right next to her next to the Court Reporter. Because in case you haven't noticed, she stepped in front of me.
WITNESS: Unless you call standing up behind her, doing the bump and grind like R. Kelly, stay away from her.
ATTY ONE: Doctor, I don't appreciate your mischaracterization of me trying to stand in front of the Court Reporter because she's blocking me.
WITNESS: All right.
ATTY ONE: Maybe you forgot that and didn't manage to say it. Because she stood in front of me.
ATTY TWO: I came next to the Court Reporter so I could get his attention. And you can stop talking.
ATTY ONE: You're blocking me.
ATTY TWO: You can from behind me and brushed me.
ATTY ONE: You're blocking me.
ATTY TWO: We can hear your voice . We don't have to see you. 
(Would you believe . . . an R. Kelly reference, a "bump and grind" in a deposition, a witness defending a lawyer, lawyers arguing over who should stand where?)

(Would you believe . . . two professionals having a "he's touching me" argument reminiscent of the backseat of our collective childhood?)
WITNESS: Really? Hold on. Stop for a second. Just stop. You're being ridiculous.
ATTY ONE: Doctor, no offense, I don't need you to tell me how I am.
WITNESS: You're being ridiculous.
(Would you believe . . . a witness frustrated enough to chastise and attorney for rudeness, and ridiculousness?)
ATTY TWO: We are finished. I'm terminating the deposition  - We're done.
ATTY ONE: No, you're not terminating it. My cross --
ATTY TWO: Yes, I terminated it.
ATTY ONE: No, you're not. Doctor, I'm not -- she's interrupting me. I want to finish my question. Are you going the answer anymore questions?
WITNESS: I 'm going to call 911 on you.
ATTY ONE: Are you going to -- are you going -- are you going to -- are you going to allow me to ask questions?
WITNESS: I'm going to call 911 on you. She's -- (Untranscribable because both counsel and WITNESS are talking over each other.)
(Would you believe . . . a witness threatening to call the police, TWICE, regarding attorney behavior?)

(Would you believe . . . lawyers cutting off each other so neither can be heard?)

Would you believe? Of course, I think most of us would be as skeptical as Mr. Big ("I find that hard to believe"; "I don't think so") or Siegfried ("I don't believe you"; "No"). No, I think there would be natural skepticism about professionals behaving so. Some will no doubt refuse to believe that the excerpts above came from actual depositions taken in an actual case. And, thereafter one of the lawyers thought the transcribed testimony was suitable for filing (perhaps related to a motion for sanctions or to strike?). 

Certainly, arguments might be made at trial about testimony, records, and the why and wherefore of conclusions challenged. That is the place for arguments, before a judge. That is where one might say "the provider lied," the "explanations are not credible," the "answers were evasive," and any number of other reasons for discrediting testimony. But, that is not appropriate before the witness. In the deposition, it is appropriate to establish the fact that answer "A" is not the same as answer "B." It is OK to ask if and answers are different. But calling the witness a liar is neither appropriate nor professional. And, even if a witness or opponent becomes confrontational, "he started it" is no justification for a professional. 

Certainly, there are personalities in this profession with whom we will each struggle. And, they will not all be the same for each of us, because personalities are unique. In fact, the same person may react differently day to day; we all have good and bad days. What grates on you on a particular day may not be something I even notice. But, we will each have people or personalities or traits that annoy us. That is known, and what we must therefore learn is how to both identify those personalities/traits/habits and deal with them (people do not change or just go away because we find them abrasive or annoying). 

And finally, we have to admit there will be times when our lives will be impacted by stress, sleep, illness, and more. There will be days that we will not be our best, despite our best efforts. We must each remember that we cannot control those people and situations that we will encounter, but we can choose how we will respond to them. When we are having "one of those days," the sooner we recognize it, the better we can deal with it. 

Certainly, witnesses can be partial to a point of view or perspective. Witnesses can be advocates for a position, which may be contrary to yours. They can be confrontational and difficult. But, when a witness reaches the point of calling you ridiculous, that may be a time to pause and reflect. When a witness threatens to call the police, perhaps rethink your demeanor. If you find yourself engaged in an argument over who will stand where, who said what, and pedantic points such as whether your questioning is concluded, it may just be time to walk away for the day and try again when mood and demeanor have calmed. 

If you are having "one of those days," perhaps an off-the-record conversation in the hall might be a good idea. If you are repeatedly having "one of those days" in the same case, or with the same opposing counsel, or the same witness, then maybe it is something more than "one of those days?" Maybe the issue is larger than you first perceive, and discussing it with a law partner, friend, or peer might help with both understanding your emotions and formulating professional reaction?  Sometimes just getting it off your chest is cathartic. 

If the feelings are instead isolated to today, maybe explaining to someone that you are having a difficulty might help you both to better address the challenges of the day? Maybe a quiet conversation about issues, perceptions, and feelings (off the record, and away from the witness) could help both attorneys to remain professional and maintain  each attorney's focus on her/his client instead of personalities? A common idiom is "it takes two to tango," and though it is difficult to embrace that as a child in the backseat, perhaps professionals can embrace it nonetheless?

I am chagrined by the deposition excerpts recited in this post. And, these are merely examples. Attorneys should remain conscious that judges scrupulously read depositions, listen to examination during hearings, and notice professionalism. What you say will be read or heard. I have been privileged to watch some exceptional attorneys, often in uncomfortable and distressing circumstances. The best rarely or never let emotion overtake their objective of representing their client. They persevere, persist, and press on. They elicit facts and opinions from witnesses, and save argument for the judge. 

I cannot overstate my respect for those professionals, nor my disappointment when I see behavior like that quoted herein. Being an attorney is a hard job, challenges are commonplace, changes and surprises are disconcerting, and suppressing feelings is not always easy. But, the best strive to keep it professional, to control emotion, and to remain focused on the client's best interest. If you struggle to remain focused, I encourage you to find someone to discuss it with.

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