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American Bar Association Forum on Construction Law

3:00 a.m. Nightmares: Mistakes Attorneys Make in Complex Litigation and How to Avoid Them

L. Tyrone Holt, Esq. The Holt Group LLC | Denver, CO

Timothy R. Thornton, Esq. Greensfelder | St. Louis, MS

Presented at the 2015 Midwinter Meeting January 29-30, 2015

Westin Kierland Resort & Spa, Scottsdale, AZ

©2015 American Bar Association

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Between 50 to 80% of working adults dream about work, “with a significant portion admitting

they often wake up in a cold sweat and experience work nightmares once or more a week.”1 Most

construction trial lawyers can relate to the feeling of being awoken at 3:00 am from a work-related

nightmare. The dream usually traces back to an incurable mistake, real or imagined, in a particularly

demanding case. Perhaps a brief was not filed on time; a witness failed to show up in court to testify; or a

privileged document was inadvertently disclosed.

Fortunately, having nightmares about your cases should not always be interpreted in a negative

way. For those who have the common dream about being unprepared for some job-related task or

event, “this anxiety dream is most common to people who never allow themselves to be unprepared.”

The people who have this type of dream “are generally successful, competent professionals who excel at

their work and prepare as much as humanly possible.”2

This program is inspired by some of the nightmares more commonly experienced by lead trial

counsel on big and complex construction cases:

Nightmare No. 1: Feeling Overburdened by a Big and Complex Case.

Nightmare No. 2: Picking the Wrong Expert or Mismanaging the Expert’s Report.

Nightmare No. 3: Concern Over the Expert’s Qualifications.

Nightmare No. 4: A Confidential Document Is Inadvertently Produced to the Other Side.

Nightmare No. 5: Your Opponent is Using Inadmissible Evidence.

Nightmare No. 6: Your Opponent Loves Coaching the Witness.

Nightmare No. 7: Use and Abuse of Sanctions Motions.

These nightmares exemplify, and are reflections of, mistakes attorneys are afraid of making. This

program offer suggestions for avoiding, or at least minimizing, such mistakes so that counsel can sleep

(more) soundly. This program also identifies and addresses certain ethical dilemmas and potential

malpractice claims that are typical of big and complex construction cases. Like many other challenges in

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the legal profession, these nightmares may be treated, though never completely cured, with good

planning and preparation.

Nightmare No. 1: Feeling Overburdened by a Big and Complex Case.

Under What Circumstances Should Lead Counsel Take On a Big and Complex Case?3

Defining the “Big and Complex” Case.

The first step in determining whether to undertake a big and complex case is for lead counsel to

identify this unique type of case, and to do so as early as possible. Lead counsel, especially those

experienced in construction, will likely be able to handle the anticipated work-load of a big or complex

case using his existing staff and resources. However, where many lawyers make their first mistake as lead

counsel is in failing to realize that their case is too big and complex for them to effectively manage.

Failing to identify this type of case early on may leave lead counsel without the resources, management

abilities, construction experience, or legal skills necessary to achieve success. Therefore, before

discussing when lead counsel should take on a big and complex case, it is first necessary to define and

recognize such a case.

A “big” case, on the one hand, typically has multiple parties and large amounts of money at stake;

but the underlying issues are not necessarily technical or contentious ones, and proving the claims and

defenses may require relatively few witnesses and documents. A “complex” case, on the other hand,

typically has highly technical and contentious issues, and a large number of witnesses and documents;

but does not necessarily involve many parties or large amounts in dispute.4 A “big and complex” case is

characterized by multiple parties; large amounts at stake; highly technical or contentious issues; extensive

motion practice; opposing expert testimony; an expansive factual investigation, including massive

amounts of documents and full-scale discovery; and multiple status conferences and other hearings, not

including trial.5 Construction cases frequently fall into the category of being complex, but not all

construction cases are big. Some indications that a construction case is, or is likely to become, big are the

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following: the amount of the project budget; the project footprint, size, or scale; the scope or role of the

client on the project; the business history of the parties to the dispute; and the relationship among the

individuals most directly involved in the dispute. Of course, it is not always possible to know in advance

that a relatively small or simple case will not balloon into a big and complex one. For example, events in

the field may still be developing at the time of lead counsel’s initial consultation with the client, and the

other shoe (or hammer) may have not yet dropped. Therefore, before accepting the role, lead counsel

must do his due diligence by assessing not only the nature of the dispute, but also the direction it appears

to be heading.

Important Considerations Before Accepting the Role of Lead Counsel.

The prospect of undertaking a big and complex case is tempting for any lawyer who desires the

challenges, the responsibilities, and the rewards of being “first chair.” However, against this temptation

lead counsel must weigh the following two, principal considerations: first, lead counsel’s experience and

technical ability, and that of his staff, to diligently serve the client’s interests utilizing the best practices

and most effective strategies and techniques available under the circumstances; and second, the

requirement that counsel manage the litigation in a professionally competent and ethically appropriate

manner. These two, principal considerations create the ceiling and the floor, respectively, for counsel’s

services on any legal matter.

For any lawyer who believes that accepting the representation may be too burdensome, time-

consuming, or difficult, it is important to remember that the standard for declining representation of a

potential client is a low one. In fact, under M.R.C.P. Rule 1.16, a lawyer “should not accept

representation in a matter unless it can be performed competently, promptly, without improper conflict

of interest and to completion.” While a lawyer has the right to decline to represent a client/prospective

client in a matter, the lawyer also has an obligation to inform the client/prospective client of this

decision.6

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Big and complex cases, especially those in the construction area, have a tendency of taking on a

life of their own. Lead counsel must realistically evaluate his firm, his client, and himself before accepting

the responsibilities and years-long commitment which accompany the big and complex case; just as a

captain must inspect his ship and select his crew before disembarking through the cold, choppy seas.

Therefore, before taking the case, even the most-experienced trial attorneys should take pause and

reflect on the following considerations:

Whether lead counsel has the requisite degree of experience in the substantive area and in the appropriate venue;

Whether lead counsel has the requisite degree of experience in the dispute resolution procedure agreed to by the parties (or that which would most benefit the parties);

Whether the firm’s staffing is adequate and up to the challenge;

The existence of any business or ethical conflicts and the prompt resolution of such conflicts, if possible;

Lead counsel’s schedule and other commitments;

The schedule of the firm, the client, and the Court;

The Client’s personality, level of commitment, and financial position; and

The personalities of the clients and attorneys on the other side(s).

Counsel’s Experience in the Substantive Area and the Appropriate Venue.

Generally, attorneys should never take on the role of lead counsel on a case where they do not

have a reasonable amount of specialization in the substantive area of law. This basic tenet of legal

practice is enshrined in the Model Rules of Professional Conduct (“MRPC”) at Rule 1.1: “A lawyer shall

provide competent representation to a client. Competent representation requires the legal knowledge,

skill, thoroughness and preparation reasonably necessary for the representation.” The comments go on

to state, as it relates here to big and complex cases, that:

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the required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.

Finally, the MRCP provide that “expertise in a particular field of law may be required in some

circumstances.”7

Practically speaking, unless lead counsel has the requisite experience in the substantive area, he8

will likely miss many of the nuances involved in evaluating the case and anticipating where the case is

likely to go. Such a lack of anticipation can lead to the situation, alluded to above, where the small and

predictable case turns into a monster, eating up all of counsel’s time and resources and straining his legal

and management skills. Moreover, without an adequate understanding of the substantive area, it is

difficult – if not impossible – for counsel to develop and maintain an effective litigation strategy, which in

turn allows opposing counsel to implement their strategy unimpeded and take advantage of “gimmes”

and missed opportunities.

With respect to construction cases in particular, it is virtually impossible for a litigator to

effectively manage a big and complex case without having significant experience in construction cases

over a number of years. Good commercial litigators, with strong experience in other areas, are invariably

surprised at the degree of sophistication, the depth of the substantive issues, the esoteric contractual

language, and the amount of documentation they encounter in their first construction case. While good

commercial litigators can (and have) overcome this learning curve, a big and complex case is not the

professionally appropriate time to acquire the requisite experience in construction law, particularly when

opposing counsel is well-versed in the construction arena.

Finally, in addition to his familiarity with the substantive areas of law, lead counsel should also be

experienced with the applicable rules, customs, and practices in the venue of the litigation. Moreover,

the demeanor and attitude of judges can differ remarkably depending on such factors as the region of the

country, whether the venue is urban or rural, and the budget, caseload, and resources of the judicial

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district. If lead counsel is practicing outside of his “home” jurisdiction or is appearing pro hac vice, he

should consult with and draw upon the experience of local counsel to conform to the norms and

expectations of the venue.

Counsel’s Experience with Alternative Dispute Resolution (“ADR”)9 Procedures.

Not all big and complex cases are confined to the litigation arena.10 Before assuming the role of

lead counsel, lawyers should evaluate the ADR procedure(s) selected by the parties, if any, and confirm

that they possess the requisite degree of experience with such procedure(s). While mediation and

arbitration represent the two most commonly used forms of ADR, they are by no means the exclusive

ones. Other forms of ADR commonly utilized by parties include early case evaluation other than

mediation (a/k/a “early neutral evaluation”); guided choice; mediation-arbitration; non-binding

arbitration; dispute review boards; and, for certain public works projects, the appointment of a neutral

government official as arbitrator. In fact, if the parties so desire, they can settle their dispute through an

arm-wrestling competition, as the CEOs of Southwest Airlines and Stevens Aviation famously did in

1992.11

Even if the parties have not selected any form of ADR, they can still do so by agreement after a

dispute has arisen. Therefore, it is important that lead counsel also possess the requisite experience in

the substantive area to assess the dispute and to recommend, if reasonably appropriate under the

circumstance, that the client utilize an ADR procedure which may expeditiously and economically resolve,

or at least reduce the size and cost of, the big and complex case, in whole or in part.

ADR, and particularly mediation, can be a relatively inexpensive way for lead counsel to obtain,

from a neutral third-party, an early evaluation of both the value of the case and the legitimacy of the

parties’ legal and factual arguments. Similarly, ADR can be used to either learn about the other side’s

case, or to test the value and legitimacy of the other sides’ theories and arguments. ADR also forces lead

counsel to compile his best arguments and evidence into one place at a relatively early time in the

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litigation process, thereby creating a snap-shot of the case which can be used to evaluate internally the

relative strengths and weaknesses of the case. Finally, ADR has the potential benefit of helping protect

lead counsel from certain ethical issues and malpractice claims. In particular, because clients are typically

involved in creating the ADR documents (such as the mediation statement) and are frequently required to

attend the ADR sessions, lead counsel has a golden opportunity to inform the client about the case

generally and in specific: the status of any discovery or motions; the current value of the case; and the

risks and benefits of proceeding with litigation in the event that ADR does not result in settlement.12

Whether the Firm’s Staffing is Adequate and Up To the Challenge.

Lead counsel must consider whether his current staffing is adequate to handle a big and complex

case. In this context, adequate staffing means across the board and at all levels, including junior

associates, mid-level lieutenants, senior-level veterans, and paraprofessional staff. Lead counsel should

not bank on being able to staff up after committing to take on the case. While junior associates are

generally easier to hire when needed; mid-level lieutenants are harder to find, especially in competitive

markets; and high-quality paraprofessionals are seldom unemployed. Further, new hires can be risky at a

time when there is little room for error; and equally, unexpected departures can be a major disruption

and distraction for remaining team members. Finally, it is difficult to understate the importance of

employing trustworthy and competent paraprofessionals. The administrative, organizational, and

ministerial duties performed by paraprofessionals is absolutely essential to a well-oiled litigation machine.

In short, it is essential that lead counsel have a core group of highly experienced and hard working

professionals in place in order to properly handle the big and complex construction case.

Beyond securing their mere physical presence, adequate staffing means that lead counsel should

have experience working with the staff. If lead counsel has recently joined a firm and has not yet learned

the administrative procedures – not to mention the names of his team members – this can create a

formidable obstacle to success. At a minimum, lead counsel should have experience working with the

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staff upon which he will depend. Ideally, the staff should have previously demonstrated an ability to work

together on other high-value or high-pressure projects, if not on other big and complex cases. It is

important that people on the team get along and respect each other professionally – they will be

spending a lot of time together. It is also important to know which team members are best-suited for

performing which tasks (i.e., research, writing briefs, taking depositions, appearing in court, and

communicating with the client) so they can be utilized most effectively. Finally, as the motivator-in-chief,

lead counsel should ensure that his staff is up to the challenges presented by a big and complex case,

which can include long or unusual hours, increased work-load, tight deadlines, and extensive travel.

The Existence of Any Business or Ethical Conflicts.

Under the MRCP, attorneys are prohibited from representing a client if the representation

involves a concurrent conflict of interest to which the client has not given informed consent, confirmed in

writing.13 For big and complex cases, in addition to the numerous parties involved in the dispute, each

party will typically need representation by counsel (and perhaps local or corporate counsel, too), and one

or more specialized consultants, who may or may not testify as experts. The involvement of so many

companies, firms, and individuals creates a rich environment for possible conflicts of interest.

The Manual for Complex Litigation, describes the recommended practice for attorneys in big and

complex cases with respect to conflicts of interest, as follows:

All attorneys and their firms should make an early and thorough conflict check—preferably before accepting representation—to determine whether the firm or any of its lawyers are presently representing or have in the past represented any other party in any matter substantially related to the present litigation. This check should take into account not only persons and companies formally aligned as adverse parties, but also companies and organizations affiliated with such parties, co-parties whose posture might change as the litigation progresses, and persons or companies that might later be added as parties. Firms should also guard against disqualifying conflicts arising during the course of the litigation as a result of acceptance of new clients or taking on of new partners or associates. These checks and safeguards are particularly important for attorneys representing a class or seeking to act as lead counsel in multiparty litigation. Questions about possible disqualification of an attorney should be addressed as soon as they become known and promptly resolved.14

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For construction cases in particular, the potential for conflicts is enhanced by the existence of

many repeat players in both the construction industry and the related construction-litigation industry.15

To the extent possible, lead counsel should identify all of the construction participants on the project, as

well as each of their attorneys and consultants, under the assumption that all of them may eventually be

parties. In some cases, the identity of both the lawyers and the consultants can be derived from the

claim documents or, depending on the claim and the state in which it is filed, from the complaint itself. In

most cases, however, lawyers on the other side will not divulge the identity of their consultants until such

disclosure is required.

Lead Counsel’s Schedule and Other Commitments.

A common reason lawyers lose sleep over a case is because of an over-committed schedule.

Before taking on a big and complex case, counsel should lay out the approximate schedule for completing

the case, which may take years to fully resolve. Lead counsel must be physically, mentally, professionally,

and personally able to undertake the ubiquitous, and sometimes unpredictable, time commitment typical

of this endeavor.

Sometimes even the best lawyers have events going on in their personal, family, or professional

life that can make it difficult for them to be fully engaged in a client matter. If these commitments will

make it overly difficult for counsel to remain engaged in a big and complex case, the timing may not be

right for accepting the position of “first chair.” Counsel must remain mindful of the ethical rules

pertaining to diligence, such as M.R.C.P. 1.3, which require lawyers to “pursue a matter on behalf of a

client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful

and ethical measures are required to vindicate a client's cause or endeavor,” and also to control their

work load, “so that each matter can be handled competently.”16

The Schedule of the Firm, the Client, and the Court.

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Lead counsel should also evaluate the schedule of the firm, the client, and the court. With

respect to the firm, the existence of an adequate staff is one thing, but the availability and willingness of

the staff to work a big and complex case is quite another. Each individual, and particularly the mid- and

senior-level people who will spend the most time travelling and conducting depositions, must be able to

withstand the inevitably heightened work load. Lead counsel must consider whether the staff’s existing

work-loads and commitments to other clients prevent him from devoting adequate resources to the case.

With respect to the client, it is essential to confirm that the client is committed to dedicating the

resources and employee time necessary to support the firm in managing the case. This time commitment

frequently takes the shape of collecting documents, coordinating interviews with personnel, and

providing factual information about the case, at a minimum. However, especially in construction cases,

this commitment is likely to extend to performing site inspections, reviewing project documents

(including plans and specifications), assisting with written discovery, and testifying at depositions and/or

hearings. During his initial conversations with the client, and preferably before taking the case, lead

counsel should inform the client of the substantial resources and time commitments required. Best

practices would then suggest reducing the client’s understanding to writing as a part of the engagement

letter.

Of all the schedules involved, the court’s schedule is usually the last to be considered, even

though it is usually the most difficult to adjust. Lead counsel should expect that most big and complex

cases will not be docketed for trial until at least one-and-one-half years after the date the complaint was

initially filed. The client should be informed of this likelihood at the outset. If appropriate under the

circumstances, counsel should recommend to the client the use of ADR to achieve a more timely and

efficient resolution. In the event the parties agreed upon ADR, or do so after a dispute arises, counsel

must also consider the schedules and availability of any affected third-party neutrals and their associated

organizations, if any.

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The Client’s Personality, Level of Commitment, and Financial Position.

The definition of a “big and complex” case, discussed earlier, includes large amounts at stake,

highly contentious issues, and a very long, very expensive road through trial. Therefore, it should come as

no surprise that the client, under these circumstances, may be upset about the process or anxious about

the outcome. Part of counsel’s consideration about whether to take the case should include evaluating

the personality of the client or the client’s representatives; including, most importantly, whoever will

serve as the firm’s main point of contact for obtaining information and making decisions on behalf of the

client.

The key to this evaluation is determining whether the client will have reasonable and realistic

expectations about the unpredictability, risks, and benefits of litigation, including the lack of certainty as

to recovery. Typically, clients with prior litigation experience, even if not in big and complex cases, will

approach the case with a more realistic and business-driven attitude. In contrast, if a client is emotionally

charged, vengeful, or principle-driven, there is a possibility those emotions will one day be aimed at lead

counsel as the person trying to resolve the client’s matters. Lawyers with experience with a particular

client should use that experience to anticipate what kind of personality will be displayed. If the client has

been a pain in the past, they probably will be more of a pain in a big and complex case, where the stakes

are higher.

In addition to personality, lead counsel must be reasonably assured that the client is able to

afford the costs of a big and complex case. Fees, costs, and expenses for such cases frequently run into

the millions of dollars, billed (and hopefully paid) monthly over the course of several years. Early on, and

preferably before taking the case, the firm handling the matter should develop a detailed litigation

forecast (budget)17 and share it with the client.18 The lead lawyer should discuss the forecast in detail

with the client, either on the phone or in-person, to ensure that it is understood. The firm must be

realistic about the amount of anticipated expert witness fees and other costs, and must be candid about

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how third-party costs will be handled (i.e., paid directly by the client or fronted by the firm). The best

practice is to have the client pay these costs directly after the lead counsel or one of his lieutenants has

reviewed and approved it for review and payment by the client. The client must understand that

litigation is a fluid, fast-moving, and sometimes unpredictable beast – there are no guarantees as to the

outcome, and price estimates as to fees, costs and expenses are subject (and indeed likely) to change.

Many lawyers are reluctant to present a litigation forecast because they are afraid it will run the

client away. However, it is far better to run the client away before taking the case than to find out at

some inopportune time, such as the eve of discovery or trial, that the client cannot pay its bills. By that

time in the case, lead counsel and his staff will have committed enormous billable time for which the firm

may never paid – not to mention the lost opportunity of handling matters for other clients where the firm

likely would have been paid. If the client cannot afford regular billable ours, perhaps the client will be

amenable to a contingency-fee agreement, a payment plan, or reduced/mixed/hybrid fees; but the key is

that the conversation take place early on and the client understands the financial commitment involved.

So You’ve Decided to Take on the Big and Complex Case – What Now?

Anticipating and Conquering the Daily Grind.

No matter how carefully lead counsel evaluated the case going into it, he must be prepared to

stay sufficiently involved on a personal level and to make day-by-day adjustments to ensure that the case

does not get out of hand strategically, financially, or professionally. Competent and professionally

acceptable service is not sufficient on a big and complex case – where there is significant exposure to the

client and the fees, costs, and expenses are projected to be high, lead counsel must exhibit

extraordinarily high quality and thoroughly effective service in order to maintain the trust and confidence

of the client. In particular, the demands of a big and complex case usually require lead counsel to

consistently fulfill the following duties:

Remain close enough to the case, on a daily basis, such that lead counsel is able to make those decisions that only the lead-lawyer can make;

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Objectively reevaluate the arguments, the evidence, and the value of the case, as well as that of the other side (avoid getting “tunnel vision”);

Contemplate the lay-of-the-land from your opponent’s perspective and endeavor to stay at least one move ahead of opposing counsel;

Communicate with the client frequently and respond to client questions in the shortest time professionally possible, but never more than 48 hours;

Stay closely connected with the professional and paraprofessional team – lead counsel should always know what tasks his staff is performing at all levels;

Closely monitor all deadlines and develop a system for meeting or beating such deadlines;

Maintain quality control and credibility in the work product presented to the court and all other decision makers; and

Avoid over-promising or being a know-it-all; know when to say, “I do not know” or “we cannot predict that,” with credibility and confidence.19

Maintaining Client Management and Client Communications.

Of these daily duties, one of the least frequently discussed is counsel’s management of and

communications with the client. During a big and complex case, client management is essential – not

only because of the amount at stake (for which the client is ultimately at risk), but also because of the

client’s substantial investment in the services being provided by the firm. It is equally essential that the

lead lawyer in the case always be confident that he is fully aware of what the client is thinking and what

the client wants – and vice versa – both for client management purposes and to prevent a future claim of

malpractice.

While it is not necessarily essential, it is highly desirable and the best practice that the lead lawyer

be responsible for both managing the team and communicating with the client. Most clients hire the

lawyer, not the firm, and expect to communicate with the lawyer they hired. It is possible that a case is

so big that the lead lawyer cannot handle both responsibilities; in such a case someone else must be

designated, as early as possible, to communicate with the client and that person should be just as

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knowledgeable about the case as lead counsel. The goal is to prevent there from being any gap between

what the lead lawyer knows and what the client knows about the case.

Whoever maintains the responsibility for communicating with the client, he must have great

sophistication and acumen in terms of knowing when to talk to the client and what to say. Sometimes

clients are not interested in talking to counsel, but there is a tremendous malpractice risk associated with

failing to keep the client fully informed about the objective and subjective status of the case.20 Within

this responsibility, lead counsel needs also to be mindful of the roles of the different client

representatives. For example, whereas the subject matter of a particular conversation is appropriate for

only general counsel, such as legal or strategic issues, other subjects should be raised directly with the

CEO. If the conversation concerns purely the financial impact of the litigation on the company, it may

only require the attention of the CFO.

Today’s technology greatly expands the ways in which counsel can keep the client informed (e.g.,

fax, email, cell phones, SMS/texting, Sykpe/Facetime, GoToMeeting, Google Hangout21, etc.). Of course,

each form of technology is useful for conveying different kinds of information – it would not be advisable

to text the client with bad news about the case. Moreover, some things must be discussed with the client

in-person, or at least over the phone, and not even written down. Counsel should confer with the client

regarding whether these methods of communication are acceptable and should also address client

communications, in detail, in the engagement letter.

The Unresponsive Client and Knowing When to Fire the Client or Withdraw.

Although it is rare, and the reasons may be varied, there are circumstances where the client

becomes unresponsive to the communications of counsel. As an initial matter, counsel should be highly

sensitive to the responsiveness of the client during his initial consultations. Further, it is important that

lead counsel be close enough to the case to know that the client has become unresponsive and what the

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likely cause is. An unresponsive client is fertile grounds for malpractice because the lawyer has an ethical

and professional duty to keep the client fully informed – this means not just telling the client something,

but ensuring they understand the import of what counsel has told them. Counsel may have to tell the

client two or three times in order to fully discharge his duties. If the problem persists, an in-person

conversation with the client is usually necessary to get to the root of the unresponsiveness

(dissatisfaction, disillusion, financial distress, etc.).

Generally, an attorney who undertakes to conduct an action impliedly stipulates that he will

prosecute it to its conclusion; the attorney is not at liberty to abandon the representation of his client

without reasonable cause.22 In the worst of circumstances, it may be necessary for counsel to fire the

client or withdraw from the litigation. Under M.R.C.P. Rule 1.16, a lawyer may withdraw if the client fails

to substantially fulfill an obligation to the lawyer and the lawyer has given reasonable warning that the

lawyer will withdraw unless the obligation is fulfilled; or if the representation will result in an

unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

The withdrawal must be accomplished “without material adverse effect on the interests of the client.”23

Counsel should draft the engagement letter to include counsel’s right to withdraw when reasonably

necessary. In some cases, counsel can only withdraw upon approval by the court. As a general rule, the

nearer the date of trial, the less likely counsel can withdraw.24

Finally, a client has the right to discharge a lawyer at any time — subject to limitations for

diminished capacity and court appointed representation — with or without cause.25 A lawyer is required

upon termination and/or withdrawal to take steps to protect the client’s interests. This includes giving

reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and

property to which the client is entitled, and refunding any advance payments not earned.26

Nightmare No 2: Picking the Wrong Expert or Mismanaging the Expert’s Report

How Should Lead Counsel Pick His Expert(s) and Develop the Opinions into Reports?

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Picking the Right Expert for the Case.

In big and complex cases, the question is rarely whether an expert is needed, but rather how

many experts are needed and for what areas of expertise? Identifying the areas of expert consultancy

that are needed and selecting the right experts is a first-chair lawyer responsibility. Ideally, lead counsel

will only retain experts with whom he has previously worked on similar projects, who enjoy a strong

reputation in the industry, who will be personally engaged in the case, and who are effective and credible

communicators.

However, in big and complex cases, quality experts are at a premium, and there is a strong

likelihood that the expert counsel would like to retain either has a conflict of interest or has already been

retained by another party. As a result, counsel will frequently need to retain experts he has never used

before. In terms of finding a new expert, nothing is more valuable than word-of-mouth – counsel should

only use a new expert if he has thoroughly vetted the potential expert, and that expert is recommended

by someone counsel personally knows and trusts. The ABA Forum on the Construction Industry is a

tremendous resource for this purpose. There are many good construction lawyers in the Forum, as well

as high-quality expert witnesses, who can help counsel find the right expert(s) for the case.

Before engaging an expert, as a part of the vetting process, lead counsel should make sure each

expert can personally commit the time and resources necessary to produce a high quality expert report

and to prepare for giving testimony. In some cases, the expert selected by counsel will thereafter

designate someone on her staff to perform the majority of the work, leaving the expert relatively

unprepared at the time of her deposition or trial. While some delegation is necessary and should be

expected, the expert must remain closely engaged with the issues and facts upon which she will testify.

Counsel should not only ensure the expert is so committed, but also reflect that understanding in the

engagement letter with the expert. Along these same lines, lead counsel must develop, from each

expert, a reasonable approximation of the fees and costs such expert expects to incur. These estimates

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must then be candidly evaluated by counsel and the client before the expert’s engagement, and included

in the litigation forecast.

Developing the Expert’s Opinions into Reports.

Before committing to the expert, lead counsel should get a preliminary read on what opinions

she is likely to have about the case. One way to accomplish this is to draft the engagement letter such

that the expert’s services are divided into several phases reflecting an increasingly wider scope of work.

The scope for the first phase is to perform an initial review of the documents and interview of the

witnesses, as appropriate, and to develop an initial opinion. Counsel can use the experience of working

with the expert on a preliminary basis, as well as the strength and substance of her initial opinions, to

determine whether to move to the next phase.

The scope for the second phase typically consists of developing an expert report to be disclosed

to opposing counsel. Lead counsel must remain sufficiently involved with the expert’s progress in this

phase to be in a position to evaluate the strength of her opinions early on. Further, in case the expert

goes in another direction (i.e., one not supportive of the client’s interests), counsel should arrange to

have a possible substitute expert on call. The engagement letter should be drafted to allow counsel to

terminate the expert at will, and further provide that after such termination, the expert cannot be

retained by any other party to the case.

Although some rules permit a lawyer to prepare a summary of the experts’ opinions as a part of

the disclosure,27 counsel generally should not write either the opinions, or a summary thereof, on behalf

of the experts. Lawyer-drafted opinions tend to be more clear and direct than that of an expert, and

contain more legalize. Moreover, lawyers who draft expert opinions are more prone to making mistakes

in highly technical areas. Instead, by having the expert draft her own opinion, which is then attached to

the disclosure, she will become more involved and educated about the case. The lawyer’s role should be

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limited to looking for holes in the experts’ opinions and challenging the experts early and often, as

opposing counsel will do.

During this phase, it is important to remember that, for a disclosed expert, nothing is privileged

and everything is subject to disclosure. Lead counsel should assume that the engagement letter and any

communications between counsel or the client and the expert will be closely reviewed by opposing

counsel. To avoid creating a paper trail, counsel should first hold a series of verbal discussions with the

expert (in-person or via phone). Thereafter, counsel should use GoToMeeting (or another similar

program) as a tool for viewing drafts of the initial opinions or reports without exchanging paper. Any

revisions should be saved over the previous draft to avoid creating multiple versions of the same

document.

Before the expert report is disclosed, lead counsel needs to be reasonably certain that the expert

is confident in her opinion, and that the opinion will not materially change over time. The expert opinion

must be her own – not counsel’s – she must believe in it and she must “own it.” Once the opinion is

disclosed, there is no going back. Even though counsel can later decide not to call a disclosed expert as a

witness, opposing counsel may attempt to cross-designate all experts in the case, thereby giving them an

argument that they can call the disclosed expert in their case-in-chief, with potentially devastating results.

Retained Testifying Experts, Retained Non-Testifying Experts, and Non-Retained Experts.

There are a variety of kinds of experts, each of which is subject to differing disclosure

requirements, and lead counsel should consider the strategic advantages to each kind.

First, the most common type of expert is one retained or specially employed to provide expert

testimony in the case. This expert must produce a report or summary containing the elements required

by the applicable rules28 and is subject to discovery. Second, there is the expert retained by counsel in

anticipation of litigation or for preparation for trial that a lawyer does not intend to call as a witness.29

Consultations between lawyers and non-testifying experts are generally confidential and are not subject

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to disclosure.30 Third, there is the expert who is expected to offer expert testimony but who does not fall

into the first category because she has not been retained or specially employed to provide expert

testimony in the case (i.e., non-retained experts).

For non-retained experts, counsel must disclose (1) “the subject matter on which the witness is

expected to present evidence”; and (2) “a summary of facts and opinions to which the witness is

expected to testify.”31 A non-retained expert “may both testify as a fact witness and also provide expert

testimony.” In such instances, a disclosure is still required but it does not require the disclosure of “facts

unrelated to the expert opinions the witness will present.”32

An expert’s status as either a retained or non-retained expert often turns on her prior knowledge

of the facts giving rise to litigation: “as long as an expert was not retained or specially employed in

connection with the litigation, and [her] opinion about causation is premised on personal knowledge and

observations made in the course of [her duties], no report is required . . . .”33 Where an expert works for

the party before litigation begins, was not retained to provide expert testimony, and does not regularly

give expert testimony as part of her duties, she is more likely to be considered a non-retained expert.34

Likewise an expert who is a part of a case because of her own dealings with one of the parties is likely a

non-retained expert.35

Particularly for big and complex cases, lead counsel should consider retaining non-testifying

experts, who can provide valuable consultation on topics ranging from construction industry practices to

jury selection and whose advice will not be disclosed. Alternatively, in connection with counsel’s initial

selection of experts for the case, he should consider drafting the engagement letter such that the expert’s

initial scope of retention will be that of a non-testifying expert. Only if counsel, in consultation with the

client, determines to proceed with the expert to the next phase would she be converted to a testifying

expert. This gives counsel the option of either: 1) terminating the expert after her first phase of services;

2) continuing to use the expert in a consulting role (without concern over disclosure); or 3) designating

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the expert as one who will offer testimony at trial, at which time she will be subject to the disclosure

requirements of the Rules. The second option can be particularly attractive when counsel has doubts

about the expert’s opinions or strengths as a witness, but the expert could be valuable in analyzing the

case, preparing for trial, or serving as a foil to other experts.

In the unfortunate event that a disclosed testifying expert informs lead counsel, at the last

minute, that her opinion has changed, the next course of action depends upon whether the expert’s

testimony is needed to meet lead counsel’s burden of proof on any issue. Assuming the expert’s

testimony is not needed to establish any burden of proof, the most obvious course of action is to not call

her as a witness, or perhaps, in certain circumstances, to even formally withdraw her as a witness. If

opposing counsel has not cross-designated the expert, then it is likely she cannot be called to testify at all;

instead, lead counsel will need to focus on undermining opposing counsel’s expert witness on cross-

examination. However, assuming the expert’s testimony is needed to establish any burden of proof,

there is very little lead counsel can do to rectify the situation. If she does not testify at all, the case (or at

least the claim) will almost certainly be lost, most likely on a motion for directed verdict after lead counsel

rests his case-in-chief. If the expert does testify, lead counsel should try to lead her down the boundaries

of the expert report, treating the expert witness as hostile if necessary. In the end, the best cure for this

problem is prevention; lead counsel should closely evaluate his expert witnesses from the beginning of

the case to ensure that they believe in their own opinions.

Nightmare No. 3 – Concern Over the Expert’s Qualifications

How Can Lead Counsel Be Sure that His Expert will be Qualified to Testify?

Illustration: The Owner asserts error & omission claims against a design professional. The Owner calls an

expert who is an architect to testify on a variety of engineering issues. Can the architect testify? The

architect can offer opinions about architectural issues and general construction issues, assuming she has

an adequate background and experience to form such opinions and she has been tendered to and

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accepted by the court on those issues. However, it would be risky to ask anyone to offer expert

testimony in an area where they do not have sufficient expertise, particularly if the issues in question

require a specialized license. Here, because the testimony in question bears on engineering issues, a

licensed engineer would be an appropriate expert, but an objection as to the architect testifying would

likely be sustained.

In construction cases in particular, the substantive issues raised in the case commonly call for

expert opinions from a variety of experts across a range of disciplines, including architects, engineers,

accountants, claims consultants, and other specialized subject matter specialists. Experts can only testify

in the area of expertise in which they have been tendered to and accepted by the court, and only to the

extent their opinions have been previously disclosed in accordance with the applicable Rules of

procedure. Lead counsel is responsible for identifying what kind of expert testimony will be needed in

support of each substantive issue raised in the case. Counsel must keep in mind that, frequently, more

than one expert will be needed to sufficiently address a single substantive issue.

A common nightmare for lead counsel is the fear that opposing counsel will prove that the expert

is not qualified to offer the opinions for which the expert has been designated. If it turns out that the

expert chosen by counsel (and paid for by the client) lacks the necessary qualifications to offer her

opinions, then a malpractice claim is likely (if not certain). As a part of lead counsel’s expert selection

process, he must thoroughly vet each of the expert’s resumes and references, even if it is an expert with

whom counsel has worked before on other cases. If counsel does not perform this vetting process before

the engagement, or at least before the disclosure, he takes a huge risk for when that expert is later

tendered as an expert to the court.

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Nightmare No. 4 – A Confidential Document Is Inadvertently Produced to the Other Side.

How Does Counsel Manage the Document Disclosure Process to Ensure that Confidential Documents are not Inadvertently Produced to the Other Side?

Defining the Inadvertent Disclosure of Confidential Documents.

Confidential documents are broadly defined as those that are subject to a legally recognized

exemption from discovery and prohibited from use in a civil, criminal, or administrative actions or

proceedings, even if not per se privileged.36 In terms of the inadvertent disclosure of confidential

documents, a majority of states distinguish between: (1) a recipient who lacks advance knowledge that a

document is privileged or confidential; and (2) a recipient who has knowledge that a document is

privileged or confidential from the face of the document.

In the first case, when a document is not clearly confidential on its face, courts generally hold that

recipient lawyers must either follow the instructions of the sending lawyer or refrain from using the

document until a definitive resolution is obtained from the court.37 In the second case, where a

document appears on its face to be privileged or confidential, the authorities are in relative agreement

that the recipient must at the very least give notice to the sender.38 Further, ABA Formal Opinion 92-368

provides that where a party receives a disclosure that on its face is privileged or confidential, the recipient

is not permitted to examine these documents once inadvertence is discovered, should notify the sender

of the disclosure, and should follow the sender’s instructions with respect to the disposition of the

disclosures. This approach has received support from several jurisdictions.39

Under the federal rules, a party making a claim of privilege or confidential work product may

provide any party receiving the disclosure with notice, upon which the recipient must “promptly return,

sequester, or destroy the specified information and any copies it has.” Additionally, the disclosure may

not be used until the issue is resolved by the court.40 However, this rule only applies to confidential

information that was discovered during the course of litigation. The federal rules do not draw a

distinction between whether the lawyer reviews the document before or after he receives notice of the

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inadvertent disclosure. In either instance, the recipient lawyer must promptly return, sequester, or

destroy the information.

Whether the Inadvertent Disclosure Constitutes a Waiver of Confidentiality. States have adopted three different approaches with regard to whether an inadvertent disclosure

waives the privilege or confidentiality. Under the first approach, the privilege will only be waived where

the waiver is intentional (the “subjective test”).41 An inadvertent disclosure of privileged information

does not constitute a waiver of the privilege.42 Second, there is the “strict approach” whereby almost any

transmission, even if inadvertent, will result in a waiver of privilege.43 Third is the “modern approach”

wherein a court will consider numerous factors to determine whether the inadvertent disclosure results

in a waiver.44

Assuming waiver is found, there are two approaches in determining the extent of the waiver. The

first approach is that the waiver will encompass the entire subject matter of the disclosure.45 The other

approach is that the waiver will only effect revealed communications and will continue to protect those

communications not revealed if the disclosure was made in a non-litigation setting.46 Many states have

not yet addressed the extent of the waiver, in which case the Federal Rules of Evidence, which do address

this issue, offer guidance.

Under the federal approach, Federal Rule of Evidence 502 governs whether waiver occurred. It

provides that

[a disclosure] does not operate as a waiver in a Federal or State proceeding if : (1) the disclosure is inadvertent; (2) the holder of the privilege . . . took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following F.R.C.P. 26(b)(5)(B).

Thus, Rule 502 is akin to the states’ modern approach with respect to waiver. Additionally, F.R.E. 502(a)

provides that there will not be a subject matter waiver resulting from disclosure unless the waiver was

intentional; the disclosed and undisclosed information regards the same subject matter; and the

information should be considered together.

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Managing the Document Disclosure Process.

Properly managing the document disclosure process begins with lead counsel. He must be close

enough to the case to know what documents need to be disclosed, the potential confidentiality issues

associated with such documents, and what process is being used to screen such documents from the

production. No matter which process is used – a simple but less thorough key-word search; or a

comprehensive but more expensive coding of each document to a database – the approach should be a

conservative one with, budget permitting, an iterative review process on the backend to serve as a

failsafe. It is simply not realistic, nor economical, to have lead counsel review every document personally.

However, once the potentially privileged documents are identified, lead counsel should personally review

each of them to decide what documents can be withheld on the basis of an asserted privilege.

In terms of staffing, lead counsel needs to make sure he has competent, properly experienced

and diligent people on the team who he can trust perform the document work. A dependable

paraprofessional and support staff, appropriately supervised by mid- or senior-lawyers, can be

particularly value in this process to help reduce costs. Document work should not be left to junior

associates to perform on an unsupervised basis. In big and complex construction cases, there are likely to

be millions of pages of documents produced in discovery. Before discovery begins, and preferably before

taking the case, lead counsel must ensure that his firm has the hardware, software, and IT support to

reliably store and access such documents.

Utilizing Protective Orders and Claw-Back Provisions.

Counsel should not wait until a particularly sensitive document is inadvertently disclosed to the

other side before taking action to protect the client from the embarrassment or the harm of disclosure.

As a part of the case management conference, if not sooner and certainly before any documents are

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produced, counsel should propose to opposing counsel a stipulation to enter into a Protective and

Confidentiality Order (“PCO”) with a “claw-back” provision.47

Many parties to document-intensive litigation enter into claw-back provisions that allow the

parties to reduce the burden of document review in favor of an agreement to return inadvertently

produced privileged documents.48 Because claw-backs are relatively common and benefit each party

equally, there ought to be few contentious issues encountered with opposing counsel in the drafting of a

joint stipulation. Nevertheless, even if opposing counsel will not agree to a claw-back agreement, courts

have authority to enter the provisions sua sponte.49

F.R.E. 502(d) provides that a “federal court may order that the privilege or protection is not

waived by disclosure connected with the litigation pending before the court — in which event the

disclosure is also not a waiver in any other federal or state proceeding.” This section is “is designed to

enable a court to enter an order, whether on motion of one or more parties or on its own motion, that

will allow the parties to conduct and respond to discovery expeditiously, without the need for exhaustive

pre-production privilege reviews.”50 For these agreements to be binding on third-parties, the agreement

must be incorporated into a court order.

As an example, a stipulated PCO should include the following provisions:

A definition for confidential information;

A mechanism for designating information confidential (i.e., marking the bottom right-hand corner of each page “confidential”);

A listing of the persons to whom confidential information may be disclosed (i.e., the court; the parties and each of their representatives; third-party document vendors; mediators or other ADR provides; and expert and fact witnesses) and a requirement that counsel put such persons on notice of the PCO;

A requirement that information marked “confidential” may not be disclosed to any person outside those specifically listed, and may not be used for any purpose whatsoever outside of the current legal proceedings between the parties;

A requirement that information marked “confidential” be destroyed or returned to the disclosing party upon settlement, adjudication, or dismissal of the case;

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Exceptions for information that is public knowledge, disclosed before discovery, acquired by third-parties, or discovered independently without violating the PCO;

A provision relating to inadvertent disclosures requiring the receiving party, regardless of whether the information was marked “confidential” at the time it was received, to notify the sending party and to return or destroy the confidential information.

If the receiving party disputes the confidentiality of the information or the inadvertence of the disclosure, the receiving party may not use the information for any purpose until the court issues a decision;51 and

A provision stating that the inadvertent disclosure of any confidential information shall not constitute a waiver of the underlying privilege or protections.

Even after a PCO has been entered by the court, lead counsel should remain vigilant not to

inadvertently disclose any confidential information to the other side. The PCO does not guard against

laziness or carelessness. Although a claw-back provision can ensure that the confidential information is

returned to the disclosing party, the information will now be “out there” for opposing counsel to use,

which could potentially hurt the client’s case and could also create a malpractice risk. As stated above,

once the bell has been rung, it cannot be un-rung.

Nightmare No. 5 – Your Opponent is Using Inadmissible Evidence.

Introduction.

Rules of evidence exist for a reason. Such rules are founded upon principles of fundamental

fairness such as relevance to the issue before the court, avoidance of unfair surprise, balancing the

probative value against the potential prejudice, as well as concepts such as reliability and competence.

Trial judges are granted broad discretion to admit or exclude evidence in the face of competing

arguments from the parties. The trial judge is the gatekeeper who siphons out evidence that is repetitive,

inflammatory, irrelevant, unnecessarily confusing or simply a waste of time. The trial judge is the referee

who strives to achieve a resolution of the dispute within the recognized boundaries of the rules of

evidence. Clearly, however, there are times when one of the parties may seek an advantage by ignoring,

or at least pressing the limits of, the recognized rules respecting admissibility of the evidence. Trying a

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case against an adversary who seeks to try the case outside the lines can give rise to the most unpleasant

of nightmares. This section addresses one such nightmarish case as well as some of the legal authorities

and strategies that might be useful in recapturing more peaceful sleep.

Fact Pattern.

A private party facing a jury trial with a public entity raises the unique circumstance in which the

jurors are being asked to ignore their individual financial interests and sit in impartial judgment when

deciding the claim. If the public entity is the defendant, jurors likely know that a verdict in favor of the

private plaintiff will be paid with their tax dollars. Similarly, if the public entity is the plaintiff seeking

damages allegedly incurred because of some act or omission of the private defendant, the jurors also

likely know that a verdict in favor of the private defendant means that the damages incurred by the public

entity plaintiff will have to be absorbed into the public coffers. This latter scenario can become even

more dangerous if the jury is made aware that the public entity’s claim is covered by the private

defendant’s professional liability insurance. Why not award damages to the public-entity plaintiff rather

than dip into the jurors’ pockets, particularly since the bill will be paid by an insurance company? This

scenario is enough to give even the most seasoned trial lawyer night sweats. These concerns became

very real in the case described below.

A public transit agency for a major metropolitan community decides to expand the existing light-

rail transit system in the city and surrounding area. The public transit agency issues a Request for

Proposals seeking a fixed-price proposal to both design and manage the construction for the project. A

contract is awarded to a special purpose joint venture which agrees to provide overall program

management consulting services for both the design and construction of the extension. Over time,

significant unresolved issues festered, delays ensued and the schedule lagged; costs soared dramatically.

Despite protests by the joint venture that the problems were not its fault, the public transit agency was

convinced otherwise. Ultimately, the joint venture was terminated for default and sued for project

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delays, costs overruns and a number of alleged design and engineering errors and omissions. All told, the

public transit agency’s alleged damages approached $100 million, not including the unspecified punitive

damages claimed for alleged fraudulent billing practices by the joint venture. The stakes could not have

been higher for the individual joint venturers, several of which relied heavily on performing government

work. Findings of default, or even worse, fraud would be a devastating blow to their livelihood.

Throughout the discovery and pretrial phases of the case, counsel for the public transit authority

made it clear that they intended to push the limits of the rules of evidence by seeking to introduce

documents and testimony of dubious value and marginal relevance to the issues in the case. Much of this

borderline evidence could, of course, be spun to paint the defendant joint venture in a negative light.

Other evidence was intended to motivate the jurors to take a personal and vested interest in the

outcome. Evidence of this latter sort included testimony and documents that the public transit authority

relied on public funds, i.e., tax dollars. Public transit authority counsel wanted the jurors to believe that a

finding for the joint venture defendants would mean a $100 million bill for the taxpayers. Public transit

authority counsel also sought ways to make it clear that the defendant joint venture maintained

professional liability insurance that just might cover a portion of the damages ultimately awarded by the

jury. It was a win-win for the community. A verdict for the public transit authority would replenish the

public treasury at the expense of profit-mongering insurance companies. Counsel for the joint venture

needed to find an effective strategy to confront the transit agency’s foreseeable plan to present to the

jury evidence which was inadmissible under applicable law.

Faced with this scenario, the most basic strategy for combating the use of improper and

inadmissible evidence is, of course, to object at the time the evidence is referenced. Such a strategy is

hardly failsafe. First, expecting a judge to be fully prepared to rule on complex, sophisticated or nuanced

evidentiary issues on the fly in the midst of trial can be unrealistic. Moreover, the judge is not likely to

recess the trial while the court researches how it wants to rule on the particular issue at hand. Second,

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anytime trial counsel objects to an opponent’s evidence presents the risk that the jury will perceive the

objecting counsel to be obstructionist, or to simply be hiding important – and probably harmful –

evidence from the jury. Third, at times, things develop so rapidly during trial that the offending evidence

is displayed to the jury before the objection can be made and ruled upon. Even if a cautionary instruction

is thereafter given to the jury instructing them to ignore the improper evidence, the proverbial horse has

already escaped the barn. A better strategy than sitting back and waiting to object in the spur of the

moment was needed considering that counsel for the public transit agency was clearly telegraphing its

intent to push the limit on using improper evidence.

Motion in Limine.

Instead of waiting for the issues to arise at trial to be dealt with on the fly, counsel for the joint

venture decided to file a number of motions in limine seeking to bar any improper or inadmissible

documents, testimony or other evidence which the public transit authority was likely to try to present,

including, for example, evidence of public funding. Motions in limine are nothing new. The goal of any

motion in limine is, of course, to obtain an evidentiary ruling without exposing the jury to the offending

evidence.52 Interestingly, although motions in limine are an accepted part of federal practice,53 neither

the Federal Rules of Civil Procedure nor the Federal Rules of Evidence specifically refer to motions in

limine. Instead, the motion derives from the court’s inherent authority to control the trial process.54 This

is true in most state court jurisdictions as well.55

Anticipating a full-scale assault on the recognized limits of admissible evidence, the defense filed

a total of 44 motions in limine in the case. These included motions to exclude evidence of other projects

having no relationship to the project at issue in the case, to exclude expert testimony regarding the

engineering standard of care being offered by an architect rather than an engineer, to exclude evidence

of damages in excess of a contractual limitation of liability, to exclude evidence of post-termination

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settlement discussions, to exclude evidence of the size and wealth of the defendants, to exclude evidence

of a grand jury investigation, and, of course, to exclude evidence of the source of funding for the project.

Of particular interest to this paper is the motion in limine related to the source of funding. The

defendant joint venture advised the court that it anticipated that the public transit authority would seek

to present evidence that the project was one hundred percent financed by local money and, as a result,

taxpayers would be impacted by the judgment. The public transit authority was also expected to argue

that the budget overruns on the project harmed taxpayers, and that a judgment in favor of the transit

authority would benefit taxpayers. Each side made its arguments to the court.

The defense argued that the court should preclude the transit authority from presenting

evidence or argument that it is financed by local funds and that that an award in its favor would benefit

the local community. References to and evidence of public funding from tax dollars serve only to

“operate on the self-interest” of the taxpayers on the jury.56 Such evidence impermissibly urges them to

“safeguard the financial interest of the city and necessarily, though indirectly, of the jurors themselves.”57

Accordingly, the joint venture argued, such evidence or argument is inaccurate and irrelevant to any

issues in this case and is highly prejudicial to the defendant.58

Permitting the public transit authority to argue or suggest that a judgment in its favor would

benefit the local community not only improperly and prejudicially appeals to a jury’s self-interest as tax

paying members of a community but also “violate[s] the fundamental concept of an objective trial by an

impartial jury.”59 Accordingly, the defense argued that the Court should exclude all evidence of,

references to or argument relating to the source of funding being public tax dollars or the impact of a

judgment on the local community.60

The public transit agency opposed the motion in limine simply contending that evidence of its

receipt of public funding should not be excluded because it is relevant to its damages claim. The

argument was not compelling. The court granted the joint venture’s motions in limine barring the public

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transit agency from offering any evidence or making any reference to the fact that the project was a

taxpayer-funded project. Specifically, the court ruled:

“[P]laintiff is prohibited from mentioning, either by statements of its witnesses or statements made in opening statement, voir dire, or argument that 1) a judgment in favor of defendants and/or against defendants will harm taxpayers and/or the local community, will impact taxpayers and/or the local community, will benefit taxpayers and/or the local community; 2) plaintiff needs and uses tax money to repay debt; 3) budget overrun on the [project] harmed taxpayers and/or the local community; 4) a verdict in favor of plaintiffs is in the jurors’, taxpayers’, and/or the local community’s financial interest.” Beyond the explicit terms of the order itself, the court made clear that the public transit agency

was not at liberty to emphasize the public funding aspect of the project to infer that which was expressly

prohibited from explicitly arguing. The court’s ruling and admonishment did not, however, stop transit

authority counsel from carrying out its strategy. During opening statement, the public transit agency

attorney blurted out that the project had been funded with “public money.” Counsel for the joint

venture objected and immediately moved for a mistrial during a break in the opening statements. The

judge denied the motion for mistrial, but admonished transit agency counsel not to mention, or permit its

witnesses to mention, that the project was publicly funded during the course of the trial. Despite the

previous ruling, and the admonishment, the game continued.

Repeatedly throughout the first few weeks of the trial, the public transit agency’s lawyers

“inadvertently” displayed documents to the jury that referred to public financing or to the joint venture’s

professional liability insurance. More than once, the transit agency’s witnesses commented from the

witness stand that the joint venture’s insurance program had played a role in how the transit agency

approached certain contractual issues on the project. Time and again, counsel for the joint venture

objected.61 Time and again, counsel for the joint venture moved for a mistrial. Time and again, the judge

denied the defense motions for mistrial, but the judge’s patience with the transit agency’s shenanigans

was running thin.

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One day after yet another violation of the court’s in limine ruling, and another motion for mistrial,

the judge had heard and seen enough. The judge ordered that the transit agency’s legal team must, from

that point forward, read aloud to one another the complete document to make sure it did not contain a

reference to public funding or insurance. Any such references were ordered to be redacted. By reading

the document aloud to one another, the judge was confident that any such references would be detected

beforehand, and “inadvertent” references avoided. The judge made clear to transit authority counsel

that in displaying any document to the jury, counsel was warranting that it had read the document aloud,

confirmed there were no improper references in the document and was complying with the court’s

requirement and the previous evidentiary rulings. There was no uncertainty in the judge’s expectations.

Incredibly, the very next day, the very first exhibit displayed to the jury contained a reference to

the joint venture’s insurance. The judge’s strict instructions had been disregarded, and her order violated

yet again. Defense counsel moved for mistrial. Again, the judge denied the motion for mistrial, but she

had reached the end of her rope.

The judge determined that the transit agency and its lawyers must be sanctioned. She did not,

however, want to declare a mistrial. During the trial, all exhibits were shown to the jury on a large screen

in the courtroom. Creatively, the judge ruled that henceforth, the transit agency would be barred from

displaying any exhibits to the jury. The judge effectively ordered that the transit agency must “go dark.”

For the balance of the trial which would take several more weeks, the transit agency would not be

allowed to display any documents, or hand out hard copies of any exhibit to the jury. Despite defense

counsel’s previous frustration with the rejection of its motions for mistrial, the sanction imposed by the

judge had a stunning impact. The transit agency was forced to present a witness without being able to

display any exhibit to the jury. However, as soon as cross examination began by the defense, the lights

came on, and exhibits came back on the screen.

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The dichotomy was remarkable. Later in the case, when the defense presented high-tech, state-

of-the-art computer simulations, the transit agency had no response other than a flip chart and a magic

marker. The transit authority’s misconduct and repeated attempts to present the jury with improper and

inadmissible evidence resulted in it being reduced to words to which the defense would respond not

simply with words but with documents, photographs, graphics, simulations, animations and video. The

jury was not told that the transit agency had been sanctioned, but after the trial jurors told counsel that

they knew the transit agency must have been caught doing something bad. It was clear the transit agency

was being punished, the jurors simply did not know why.

The practice point is this – if and when a violation of an order granting a motion in limine occurs,

the court may grant relief and may sanction the offending party, or its counsel.62 If the conduct is

sufficiently egregious and prejudicial, the trial court possesses broad discretion to grant a new trial.63 In

order for the violation of an in limine order to be the basis for a new trial, the order must be specific and

the violation clear and prejudicial.64

The requirements of a specific order in limine, a clear violation and a demonstration of prejudice

were discussed in Warger v. Shauers,65 wherein the court addressed whether a violation of an order in

limine which excluded certain evidence could be the basis for vacating a verdict. The case involved a

negligence action following a traffic accident which resulted in serious injuries. The first trial resulted in a

mistrial after the defendant’s attorney violated the district court’s order in limine instructing “that experts

may offer opinion testimony as to a driver’s conduct but may not offer legal opinions as to whether such

conduct violates South Dakota law.” At the second trial, defense counsel again violated the in limine

order during cross examination of an expert by questioning if “Mr. Warger ha[d] to yield to the right-of-

way and not enter … until he [was] certain that the highway [was] free of oncoming traffic …” The plaintiff

again moved for a mistrial. As the opinion summarized:

The court acknowledged the violation, but denied the motion for mistrial because it found the violation had not been prejudicial. After the recess, the court instructed the

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jury to disregard the question. The trial continued without any further violations of the in limine order, and the jury returned a verdict in favor of defendant Shauers.”

On appeal, the plaintiff challenged the denial of a mistrial based on the persistent violations of the order

in limine.

The Eighth Circuit affirmed the denial of the motion for a mistrial after agreeing with the trial

court that no prejudice had been shown by the violation at the second trial:

On appeal, Warger argues the district court should have declared a mistrial because the second violation of the in limine order was prejudicial. This Court will not disturb a trial court’s denial of a motion for mistrial “absent a clear showing of abuse of discretion.” Pullman v. Land O’Lakes, Inc., 262 F.3d 759, 762 (8th Cir. 2001). “A violation of an order granting a motion in limine may only serve as a basis for a new trial when the order is specific in its prohibition and the violation is clear. “Black v. Shultz, 530 F.3d 702, 706 (8th Cir.2008). Such violation must constitute prejudicial error or result in an unfair trial. Id. “Prejudicial error is error which in all probability produced some effect on the jury’s verdict and is harmful to the substantial rights of the party assigning it.” Id. (quoting Pullman, 262 F.3d at 762). It is undisputed the district court’s in limine order was specific in its prohibition and the violation was clear. The issue raised on appeal is whether the violation was prejudicial. We agree with the district court, it was not. The court gave a curative instruction after the recess and, during final jury instructions reminded the jury that if an objection is sustained the ‘must ignore the question and must not try to guess what the answer might have been.’ We have previously upheld district courts’ refusals to grant mistrials for violations of in limine orders when, inter alia, the court gives ‘a prompt and clear curative instruction.’” Russell v. Whirlpool Corp., 702 F.3d 450, 460 (8th Cir.2012). As to the curative instruction issued in Warger v. Shauers, Warger argues the curative instruction was insufficient because it was not given until the jury had returned from the recess. Although it is true the instruction was not given until after the recess, Warger provides no persuasive explanation as to how Shauer’s question affected the jury’s verdict. He claims the question was prejudicial because it was an attempt to introduce inadmissible evidence which was key to Shauer’s defense. However, the jury heard no inadmissible testimony because the district court sustained the objection and Shauer’s counsel did not ask any similar questions during the remainder of the trial. The violation of the in limine order in Warger was intentional, occurring at two trials. The Warger

v. Shauers opinion does not address whether the trial court considered other sanctions against counsel.

Sanctions against counsel who knowingly and deliberately violate motions in limine are appropriate if the

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violation is particularly egregious. This was the situation in the case of Turner v. Roman Catholic Diocese

of Burlington,66 wherein the court described the background facts as follows:

“Before the June trial, plaintiff filed a motion in limine to exclude any reference to a sexual relationship between [Roman Catholic priest] Willis and plaintiff’s brother. The trial court granted this motion, stating that ‘[d]efense questions about this subject are barred as being irrelevant to the case before the court.’ During its cross-examination of plaintiff, defendant inquired into this relationship. The court sustained numerous objections from plaintiff during the cross-examination. During a break in the trial, the trial court entertained plaintiff's motion for a mistrial and costs. At that time, defendant indicated that it wanted reconsideration of the pre-trial ruling prohibiting it from showing that plaintiff’s brother and Willis had a sexual relationship. The court orally granted plaintiff’s motion, followed by a written ruling when plaintiff moved for the imposition of costs. The court concluded that during the cross-examination defendant’s attorney ‘repeatedly and deliberately violated the court’s pre-trial ruling by asking questions which were designed to tell the jury about this relationship.’ The court granted plaintiff’s motion for mistrial ‘because nothing short of a mistrial could have cured the prejudicial effects of defense counsel’s repeated violation of the trial court's pre-trial ruling.’”67 After the declaration of mistrial, defendant opposed plaintiff’s request that costs be imposed.

The defendant argued that the cross-examination was conducted in good faith, was consistent with the

court's evidentiary rulings at the time, and was justified by the introduction of other evidence. The court

imposed the sanction and awarded plaintiff and plaintiff’s counsel approximately $112,000 to cover the

attorneys’ costs of trial preparation and trial and expert witness fees. It held that the award was

compensatory and not punitive, but noted that the mistrial had helped defendant by enabling it to see

plaintiff’s case and that the mistrial was a particular hardship for plaintiff. The court characterized

defense counsel’s actions as “misconduct.”

On appeal, the Vermont Appellate Court observed that a mistrial can be an appropriate remedy

for a violation of an order made in response to a motion in limine.68 Further, the court has inherent

power to sanction a party “to protect the integrity of the judicial system.”69 Thus, the issue is not

whether the court had the power to issue the orders it did, but instead whether that power was properly

exercised. As to this determination, an abuse of discretion standard was applied.70

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The Appellate Court concurred with the trial court that the pretrial order had been violated and

that there was sufficient evidence to support the trial court’s finding that plaintiff had been prejudiced.

“An order in limine ‘bars questioning of witnesses regarding [inadmissible] evidence’ and ‘safeguards

against the prejudicial impact resulting from asking questions and making objections before the jury

regarding inadmissible evidence.’ That purpose was violated here.”71

Particularly instructive was the Appellate Court’s discussion of the imposition of sanctions.

“On the issue of sanctions, defendant argues that sanctions are inappropriate because the order that defendant violated was not “specific and definite” and left a “reasonable basis for doubt as to its meaning.” Specifically, defendant argues that any clarity the ruling had was eliminated by the court’s rulings from the bench during the cross-examination. Courts have inherent power to assess expenses for consequential damages suffered by the opposing side, including attorney’s fees and witness expenses, incurred due to an abuse of the judicial process. Van Eps v. Johnston, 150 Vt. 324, 327, 553 A.2d 1089, 1091 (1988); see also Onstad v. Wright, 54 S.W.3d 799, 805 (Tex.App.2001) (violation of order in limine is grounds for sanctions). Abuse of the judicial process includes ignoring court orders and acting in bad faith. Van Eps, 150 Vt. at 327, 553 A.2d at 1091. For the court to take action in response to a pretrial order, the order must be specific. Tucker, 248 Ill.Dec. 457, 734 N.E.2d at 169. The court’s pretrial order was specific and definite; defendant had notice that questions about a sexual relationship between Willis and plaintiff’s brother were prohibited. Defendant apparently believed that the pretrial order should have been modified or withdrawn. If so, its proper remedy was to approach the court and argue for reconsideration before prejudicing plaintiff’s position with objectionable questions. See City of Springfield v. Thompson Sales Co., 71 S.W.3d 597, 601 (Mo.2002) (mistrial was necessary in part because plaintiff’s counsel violated in limine ruling by “comment[ing] on these issues to the jury without first approaching the bench and asking that the in limine ruling be reconsidered”); Autry v. State, 2007 OK CR 41, ¶ 17, 172 P.3d 212 (“As a matter of common sense, as well as law, the circumstances here required counsel to approach the bench to allow the Court to reconsider the negative ruling.”); Bobo v. State, 757 S.W.2d 58, 61 (Tex.App.1988) (explaining that even without specific direction in the in limine order, counsel was required to “approach the bench concerning proffer of evidence pertinent to the motion”). Id.’

In a last ditch effort to avoid the sanctions, defense counsel argued that it did not know it was risking a

mistrial and sanctions. The Court heard none of it. “[D]efendant disobeyed the court's order. The trial

court had no obligation to specifically warn defendant that such a violation may result in a mistrial and

sanctions.”72 The imposition of sanctions was upheld.

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Conclusion.

Trying to corral an adversary intent on improperly using inadmissible evidence requires counsel

to be alert and stay out in front of the offending conduct. If counsel is successful in obtaining a ruling in

limine, vigilance is still a necessity. If an opponent violates the ruling in limine, it is important to think

creatively about how to request the court to address the violation. When in the midst of an extended

trial, is a mistrial truly the best option? Does counsel really believe the best answer is to go back and start

from the beginning with a new trial? Perhaps, as in Turner v. Roman Catholic Diocese of Burlington, the

offending party may actually benefit from the misconduct by gaining an advance preview of its

opponent’s case. There may be other and better options than a do-over. Restrictions such as those

imposed on the public transit authority can be very powerful. Findings of contempt with monetary

impact can put the opposing counsel’s skin in the game. The fact is that one remedy does not fit every

violation.

Nightmare No. 6 – Your opponent loves coaching the witness.

Introduction.

The lawyer’s job is to present the facts, not create them. A lawyer must not “counsel or assist a

witness to testify falsely.”73 Additionally, a lawyer may not knowingly “offer evidence that the lawyer

knows to be false.”74 It is professional misconduct for a lawyer to “engage in conduct involving

dishonesty, fraud, deceit or misrepresentation.”75 A lawyer must balance these professional

responsibilities against the obligation to competently represent the client. “Competent representation

requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the

representation.”76

Occasionally, in the spirit of thoroughness, or otherwise out of a plain desire to win, lawyers cross

the line between preparing a witness to testify and coaching that witness what to say and how to say it.

Where is the line between properly and fully preparing the witness to testify versus improperly coaching

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the witness what to say? It can be a nightmare when opposing counsel appears oblivious to the

distinction. What are the consequences of crossing that line?

Fact Pattern.

Sometimes, what happens in a courtroom can be stranger than fiction. Not one, but two

instances of witness coaching occurred in the public transit authority case that was discussed earlier in

this paper at Nightmare No. 5. As described earlier, the public transit authority case was high stakes

litigation. The case involved enormous damage claims (approximately $100 million, not including punitive

damages), allegations of fraud in the form of false billings and potential for government debarment all

within a case that was high visibility and the subject of daily reports on local television and in the

newspaper. The public transit authority had been the subject of some criticism for its management and

approach, and the transit authority was eager to silence its critics. The transit authority’s desire to win

was palpable.

In the fourth week of the fourteen-plus week trial, a key fact witness for the transit authority was

on the witness stand undergoing cross examination. During a court recess, the judge summoned counsel

into chambers to discuss a note she had just received from one of the jurors. The note posed a question.

Should the jury consider non-verbal signals and gestures from the transit authority’s counsel directed

toward their witness when assessing the credibility and truthfulness of that witness? The note explained

that the juror had observed one of the transit authority’s lawyers essentially signaling the witness during

cross examination. The defense encouraged the judge to respond by instructing the jury that they could

consider anything they chose to rely on in assessing a witness’s credibility, including signals from counsel.

The judge chose not to respond at all, but chastised transit authority counsel for the improper conduct.

With questions of credibility hovering over the courtroom, things were about to take an even

more dramatic turn. Less than one week after the note was given to the judge, a transit authority fact

witness admitted during cross-examination that the witness was testifying from a script provided him by

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one of the lawyers for the transit authority. It was a stunning moment. Defense counsel had caught a

glimpse of what appeared to be a color-coded outline of sorts, and decided to play a hunch. Here is how

it played out:

Q. You met with lawyers for days on end getting ready, didn’t you? A. Not days on end. Q. For a day, right? A. Yes. Q. You met with [the transit authority’s] jury consultant, didn’t you… you have talked to him,

haven’t you? A. Real brief. Q. Okay. And you went over your questions and answers, right? A. Yes, we discussed them. Q. And you were shown a script that wrote out the questions and wrote out your answers

that was prepared by the lawyers, weren’t you? A. I was shown a script. Q. That had both questions and answers on them, weren’t you? The answers were in

different color ink, weren’t they? A. Yes. Q. Did you type the answers to the questions that were on your witness outline? A. We discussed those answers. Q. Did you type the answers that were on the script that you used? A. No. Q. They were given to you by the lawyers for [the transit authority], weren’t they? A. Yes. Q. Did you follow it? A. In general.

If the court’s decision not to respond to the juror’s note had left the jury with any lingering doubt about

whether transit authority lawyers were coaching their witnesses, all doubt was eliminated with this

testimony. The fact of coaching was beyond dispute. The only issue was how the jury would factor it in

to its decision making. Not every case features such drama. Not every case features such a clear

example of improper coaching. Absent witness admissions and color coded scripts, how far should

counsel go in preparing a witness to testify?

Witness Preparation Generally.

In fulfilling the duty to prepare a witness to testify, “[a]n attorney must respect the important

ethical distinction between discussing testimony and seeking improperly to influence it.”77 “An attorney

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enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when

she influences the witness to alter testimony in a false or misleading way.”78 A lawyer may and should

inform the witness of questions which will be asked on direct examination, advise the witness of potential

questions likely to be asked on cross-examination, describe the deposition and trial processes, and

caution against excessively long narratives.79 A lawyer may also tell a witness that responses during a

preparation session are misleading, confusing, unclear, or likely to be misinterpreted or misconstrued;

may advise a witness to use direct language and to avoid jargon; and may suggest other means to help

the witness convey his or her meaning. The key, of course, is that it is the witness’s meaning, not the

lawyer’s.

Preparing a witness to give a rehearsed answer is improper if the purpose for doing so is to

mislead the finder of fact or frustrate the inquiring party from obtaining legitimate discovery. An excellent

example of the latter came to light with the inadvertent disclosure of the infamous “Script Memo,” which

was a list of instructions for witnesses preparing to testify in deposition in an asbestos case. The memo

instructed the witnesses how they were to testify in upcoming depositions:

You will be asked if you ever saw any WARNING labels on containers of asbestos. It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER. . . . Do NOT mention product names that are not listed on your Work History Sheets. The defense attorneys will jump at a chance to blame your asbestos exposure on companies that were not sued in your case. Do NOT say you saw more of one brand than another, or that one brand was more commonly used than another. . . . Keep in mind that these [defense] attorneys are very young and WERE NOT PRESENT at the jobsites you worked at. They have NO RECORDS to tell them what products were used on a particular job, even if they act like they do. . . . The only documents you should ever refer to in your deposition are your Social Security Print Out, your Work History Sheets and photographs of products you were shown, but ONLY IF YOU ARE ASKED ABOUT THEM AND ONLY IF YOUR BARON & BUDD ATTORNEY INSTRUCTS YOU TO ANSWER! Any other notes, such as what you are reading right now, are “privileged” and should never be mentioned. Obviously, the directions given in this witness preparation memo were not to testify truthfully,

but to testify in a manner that counsel believed was most helpful to prevailing in the litigation. The

directions provided in the memo were clearly at odds with the longstanding view that a lawyer’s duty is to

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“extract the facts from the witness, not to pour them into him; to learn what the witness does know, not

to teach him what he ought to know.”80 Lawyers are prohibited from attempting to influence the

intended meaning of a witness’s testimony on a material issue, but may suggest words that more

effectively convey the witness’s testimony.81

While a lawyer may suggest particular words to a witness, the lawyer may not suggest wording

that would cause the resulting testimony to be false.82 A lawyer may suggest a choice of words to

improve the clarity and accuracy of the witness’s testimony.83 However, a lawyer may not suggest

particular words that are calculated to convey a misleading impression even though the words are not

literally false.84

A lawyer’s choice of words when interviewing a witness can also improperly influence witness

testimony. For example, the question “Did you see a defect?” as opposed to the more influential “Did you

see the defect?”85 If a lawyer’s preparation is designed to fabricate a recollection that does not actually

exist, rather than to facilitate an actual recollection, the ethical boundary from permissible preparation

into improper coaching is likely crossed. On the other hand, it may be entirely appropriate for a lawyer to

challenge a witness’s apparent recollection if it is inconsistent with other evidence or is illogical or

incoherent.86

Whatever the mode of preparation, it is important that the lawyer avoid suppressing, distorting,

or falsifying the testimony given by the witness.87 A lawyer must also be guided by ethical principles

when reviewing the facts with a witness and refreshing the witness’s recollection so as to avoid false

testimony.88

In construction cases, counsel typically represents a company, and the witnesses counsel is

preparing are company employees. In many cases, a company employee must be designated as a

corporate representative for purposes of a deposition taken pursuant to Federal Rule of Civil Procedure

30(b)(6) or its state law equivalent. When testimony pursuant to Rule 30(b)(6) is given, a lawyer’s

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preparation of the designated witness may require the lawyer to investigate and supply facts to the

witness for the witness to testify concerning those facts.89

Special complications exist when preparing a corporate representative to testify. For example,

the testimony of corporate witnesses must be reconciled with the existing historical record. This can be a

somewhat treacherous area because often the lawyer is involved in helping shape the company’s

understanding of what happened.90 Where corporate employees have inconsistent memories of a

historical event, a lawyer may refresh a witness’s recollection of the facts and familiarize the witness with

relevant documents to ensure that the witness’s memory is accurate— but a lawyer must not influence a

witness to testify falsely or intimate that it would be in the company’s best interest to adopt a particular

position. If a corporate witness’s recollection or understanding is contrary to the company’s position, the

lawyer must construct the company’s position around the damaging contradictory testimony. The lawyer

cannot “wood-shed” the witness into testifying in a manner inconsistent with the witness’s view.

When part of a case involves the client’s current understanding of a contract, or how to explain

past conduct, a lawyer may work with the client to formulate the position the company will take in

litigation.91 This strategy is contingent on the standard that, when testifying in deposition or at trial as to

this understanding, corporate representatives believe that the testimony is true.

When representing a corporate client, “the differing views from the organization’s agents must

be reconciled to create a coherent litigation position.”92 A coherent litigation position can be created

only “to the extent that the accounts of various corporate officials whose opinions matter can be

rendered in a coherent and consistent form.” The lawyer preparing the portion of the case involving

explanations or justifications of the company’s position or actions may begin with the historical record

rather than relying solely on the recollection of the corporate agents. However, counsel may not cajole a

corporate witness into “modifying” or revising his or her recollection to fit within the company’s

explanation of events. If there is an inconsistency, an explanation needs to be provided (e.g. faulty

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recollection) but having the witness testify in a manner inconsistent with the witness’s views or

recollection is improper.

Use of Trial Consultants.

Retaining a trial consultant to prepare witnesses to testify does not absolve a lawyer from his or

her ethical responsibilities. Model Rules of Professional Conduct 5.3 and 8.4 make explicit that lawyers

are responsible for the acts of others under their control, including non-lawyers. For Example, Model

Rule 5.3 (c)(1) provides “[A] lawyer shall be responsible for conduct of [a non-lawyer employed or

retained by or associated with a lawyer] that would be a violation of the Rules of Professional Conduct if

engaged in by a lawyer if . . . the lawyer orders or, with the knowledge of the specific conduct, ratifies the

conduct involved.”

The case of Ibarra v. Baker,93 illustrates how Model Rule 5.3 can be violated in the context of an

expert witness. This litigation arose following the plaintiffs’ acquittal of criminal charges brought against

the plaintiffs. Following the acquittal, Plaintiffs filed a Section 1983 civil action against the police officers

who were responsible for the criminal charges being brought. The defendant’s attorney retained an

expert who essentially provided defense witnesses with guidance concerning the terms “retaliation” and

“high crime area” which were, for purposes of the case, terms of art. With the approval of defendants’

attorney, the expert provided witnesses with a highlighted, marked-up copy of the trial transcript in the

underlying criminal matter. One witness arrived at his deposition with a page of notes that closely

tracked the expert report, including reference to a “high crime area.” The witnesses began using these

terms as part of their deposition testimony. The court upheld sanctions against the attorneys for

improperly influencing a witness to testify in conformity with a novel theory, previously unsupported by

fact, which was advanced in the expert’s preliminary report.

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A lawyer may be held responsible if a retained trial consultant violates Model Rule 3.4(b). A

lawyer may also be held responsible for the methods employed by a trial consultant in preparing a

lawyer’s witness for deposition or trial.94

Coaching a Witness During A Deposition.

Notwithstanding the relatively straightforward guidelines and prohibitions discussed above,

nowhere is witness coaching in civil litigation more apparent than the deposition process. It is not rare

that counsel attending a deposition have a front row seat to view “coaching” that approaches if not

exceeds the bounds of propriety. Certainly, every attorney should avoid improper activity during a

deposition, such as making groundless objections, harassing the attorney taking the deposition, harassing

the witness, and otherwise being obstreperous. However, although improper, some attorneys simply

cannot resist the temptation to coach the witness or otherwise indicate in some manner how the witness

should answer a question during a deposition.

One of the most common avenues for coaching witnesses is the speaking objection. A speaking

objection is simply an objection that contains more information (often in the form of argument or

suggestion) than needed by the judge to sustain or overrule it. Although speaking objections are a

frequent tactic, they are prohibited by the Federal Rules of Civil Procedure, which provides in relevant

part that “[a]n objection must be stated concisely in a non-argumentative and non-suggestive manner.”95

Speaking objections are a favorite tool in the kit of the witness coach because they allow an attorney

defending a deposition to help control the questions being asked and, more importantly, the answers

being given.

An attorney defending a deposition has every right and obligation to properly object to improper

questions. When, however, the objection is more suggestive, detailed, elaborate or content-laden than

the question, something more than a mere objection is taking place. Objections at depositions should be

limited to the form of the question briefly identifying the perceived infirmity, such as compound, vague or

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assumes facts not in evidence, and the like, thus preserving the objection for the record.96 An objection

to a “deponent’s competence – or to the competence, relevance, or materiality of testimony – is not

waived by a failure to make the objection before or during the deposition, unless the ground for it might

have been corrected at that time.”97 Only “questions containing errors or irregularities” must be objected

to during the deposition in a timely manner.98

A proper objection may well alert the witness to the fact that a question is or may be defective,

but speaking objections should not be used as a signal to the witness not to answer the question even

though the witness may be perfectly able to do so. Attorneys fond of speaking objections sometimes

justify their use by arguing that the speaking objection was actually necessary because the questioning

attorney was actually harassing the witness through the questions being asked. This attempted

rationalization does not justify the speaking objection. If, in fact, the questioning attorney is engaged in

some form of harassment, then the defending attorney should make a record of that harassment for

purposes of a future motion; instruct the witness not to answer if the harassing questions continue; and,

finally, stop the deposition if the opposing counsel fails to cease the harassment.99 Counsel for the

witness is not free to take matters into his/her own hands by resorting to a litany of speaking motions.

So, what happens when opposing counsel simply will not stop with the speaking objections? If it

gets bad enough, sanctions. In Hallam v. Johnson,100 counsel made over 300 objections during a

deposition. The court found that counsel coached the witness through speaking the objections, and it

sanctioned the attorney in the amount of $25,607.03.101 Similarly, in Simmons v. Minerley,102 a plaintiff’s

attorney made numerous suggestive objections and gave instructions to the witness, his client, not to

answer. The court sanctioned the attorney in the amount of $2,500.103 Whether the speaking objections

reach a sanctionable level will depend on the facts of each case.

The subjects of speaking objections, witness coaching and sanctions for such activities were

recently comprehensively addressed by United States District Court Judge Mark Bennett in an Order

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issued in the Northern District of Iowa case of The Security National Bank of Sioux City, Iowa v. Abbott

Laboratories on July 28, 2014. Judge Bennett’s Order so comprehensively and thoughtfully addresses

these issues that the Order is attached as an Appendix to this paper. Reading the entire decision is

strongly recommended, but the highlights will be discussed here.

Security National Bank of Sioux City was a product liability case tried to a jury in January 2014.

The Bank, in its capacity as the conservator for a minor child, sued Abbott Laboratories claiming the child

suffered permanent brain damage after consuming baby formula produced by the defendant. Judge

Bennett was called upon to rule on numerous objections to deposition transcripts that the parties

intended to use at trial. As the judge reviewed the deposition transcripts, he was “shocked” by what he

perceived to be meritless objections by defense counsel. Although plaintiff’s counsel had not lodged a

complaint to defense counsel’s conduct, Judge Bennett sua sponte issued an order to show cause why

defense counsel should not be sanctioned for the “serious pattern of obstructive conduct” exhibited

during the depositions.

The conduct which defense counsel was called upon to explain came in three forms “(1)

Counsel’s excessive use of ‘form’ objections; (2) Counsel’s numerous attempts to coach witnesses; and (3)

Counsel’s ubiquitous interruptions and attempts to clarify questions offered by opposing counsel.” The

Court began with a discussion of the standards applicable to the issue of imposing sanctions for counsel’s

conduct in a deposition.

The Court found that because counsel’s deposition conduct was at issue, Federal Rule of Civil

Procedure 30 applied. Rule 30(d)(2) provides: “The court may impose an appropriate sanction – including

the reasonable expenses and attorney’s fees incurred by any party – on a person who impedes, delays, or

frustrates the fair examination of the deponent.” Rule 30(d)(2) does not limit the types of sanctions

available; it only requires the sanctions be “appropriate” which is within the sound discretion of the trial

court.104 The Court also found that it had the authority to issue sanctions sua sponte, no motion was

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required by any party. Having concluded that it could issue sanctions, the court moved onto the question

of whether it should.

Judge Bennett began his evaluation of defense counsel’s conduct by examining counsel’s use of

“form” objections during the depositions. Defense counsel certainly made prolific use of the form

objection – 115 such objections in two depositions alone. Moreover, the judge found counsel’s use of the

form objection to be improper in that such objection was used “to quibble with the questioner’s word

choice (for no apparent reason, other than, perhaps, to coach the witness to give a desired answer)”; “to

voice absurdly hyper-technical truths”; and “to break new ground, inventing novel objections not

grounded in the rules of evidence or common law”. “[W]hatever their purpose, Counsel’s ‘form’

objections rarely, if ever, followed a truly objectionable question.” However, Judge Bennett recognized

that not all courts shared his opinion on how limited the use of form objections should be. Accordingly,

he imposed no sanction for the excessive use of form objections.

The Court then moved onto a discussion of witness coaching. His analysis began by recognizing

that Federal Rule of Civil Procedure 30(c)(2) required that “objection[s] must be stated concisely in a

nonargumentative and nonsuggestive manner.” Objections that are argumentative or that suggest an

answer to a witness constitute speaking objections which are improper under Rule 30(c)(2).105 The Court

then engaged in a detailed analysis of specific objections made by counsel during the depositions. The

judge determined that counsel posed numerous “clarification-inducing” objections after which the

witness would customarily ask for clarification, or even refuse to answer the question. These types of

objections happened with such frequency that Judge Bennett commented, “I find it inconceivable that

the witnesses deposed in this case would so regularly request clarification were they not tipped-off by

Counsel’s objections.” In one deposition alone, counsel posed a clarification-inducing objection no fewer

than 65 times. The Court concluded:

“These clarification-inducing objections are improper. Unless a question is truly so vague or ambiguous that the defending lawyer cannot possibly discern its subject matter, the

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defending lawyer may not suggest to the witness that the lawyer deems the question to be unclear. Lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question. The witness – not the lawyer – gets to decide whether he or she understands a particular question.” Beyond the clarification-inducing objections, counsel also frequently objected by telling the

witness, “You can answer if you know” or something similar. Predictably, after receiving this instruction,

the witness would often claim to be unable to answer the question. The Court found this unsurprising.

“When a lawyer tells a witness to answer ‘if you know,’ it not-so-subtly suggests that the witness may not know the answer, inviting the witness to dodge or qualify an otherwise clear question. For this reason, ‘[i]nstructions to a witness that they may answer a question ‘if they know’ or ‘if they understand the question’ are raw, unmitigated coaching, and are never appropriate.’” (citations omitted) Lastly, the Court found that counsel often directly coached the witness to give a particular,

substantive answer. Sometimes, counsel did this by reinterpreting or rephrasing the question. Other

times, counsel gave the witness additional information to consider in answering a question. Yet another

strategy was for counsel to simply answer the question, after which the witness gave the same answer.

In fact, at one point in one particular deposition, counsel audibly disagreed with a witness’s answer

prompting the witness to change the response.

The third area of misconduct by counsel was tied to counsel’s excessive interruptions during the

depositions. In one deposition, counsel’s name appeared in the transcript at least 92 times. In another

deposition, counsel’s name appeared 381 times, an average of almost three times per page. “[N]early all

of Counsel’s objections and interruptions are unnecessary and unwarranted.” The Court concluded that

the extreme number of interruptions provided an independent basis for imposing sanctions.

Having now concluded that it could and should impose sanctions, the Court addressed the issue

of what would be an appropriate sanction? The Court took a considered and novel approach worthy of

repeating here in full.

Based on Counsel’s deposition conduct, I would be well within my discretion to impose substantial monetary sanctions on Counsel. But I am less interested in negatively affecting Counsel’s pocketbook than I am in positively affecting Counsel’s obstructive

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deposition practices. I am also interested in deterring others who might be inclined to comport themselves similarly to Counsel. The Federal Rules specifically acknowledge that one function of discovery sanctions should be deterrence. See Fed. R. Civ. P. 26, advisory committee notes (1983 amendments) (“Sanctions to deter discovery abuse would be more effective if they were diligently applied ‘not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.’” (quoting National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976)). Deterrence is especially important given that so many litigators are trained to make obstructionist objections. For instance, at trial, when I challenged Counsel’s use of “form” objections, Counsel responded, “Well, I’m sorry, Your Honor, but that was my training . . . .” While monetary sanctions are certainly warranted for Counsel’s witness coaching and excessive interruptions, a more outside-the-box sanction may better serve the goal of changing improper tactics that modern litigators are trained to use. See Matthew L. Jarvey, Note, Boilerplate Discovery Objections: How They Are Used, Why They Are Wrong, and What We Can Do About Them, 61 DRAKE L. REV. 913, 931-36 (2013) (discussing the importance of unorthodox sanctions in deterring discovery abuse). In light of this goal, I impose the following sanction: Counsel must write and produce a training video in which Counsel, or another partner in Counsel’s firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified “form” objections, witness coaching, and excessive interruptions. The lawyer appearing in the video may mention the few jurisdictions that actually require only unspecified “form” objections and may suggest that such objections are proper in only those jurisdictions. The lawyer in the video must state that the video is being produced and distributed pursuant to a federal court’s sanction order regarding a partner in the firm, but the lawyer need not state the name of the partner, the case the sanctions arose under, or the court issuing this order. Upon completing the video, Counsel must file it with this court, under seal, for my review and approval. If and when I approve the video, Counsel must (1) notify certain lawyers at Counsel’s firm about the video via e-mail and (2) provide those lawyers with access to the video. The lawyers who must receive this notice and access include each lawyer at Counsel’s firm—including its branch offices worldwide—who engages in federal or state litigation or who works in any practice group in which at least two of the lawyers have filed an appearance in any state or federal case in the United States. After providing these lawyers with notice of and access to the video, Counsel must file in this court, under seal, (1) an affidavit certifying that Counsel complied with this order and received no assistance (other than technical help or help from the lawyer appearing in the video) in creating the video’s content and (2) a copy of the e-mail notifying the appropriate lawyers in Counsel’s firm about the video. The lawyer appearing in the video need not state during the video that he or she agrees with this opinion, or that Counsel was the lawyer whose deposition conduct prompted this sanction. Counsel need not make the video publicly available to anyone outside Counsel’s firm. Failure to comply with this order within 90 days may result in additional sanctions. To be clear, had Counsel made only a handful of improper objections or comments while taking depositions, I would not have raised these issues sua sponte. Depositions can be

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stressful and contentious, and lawyers are bound to make the occasional improper objection. But Counsel’s improper objections, coaching, and interruptions went far beyond what judges should tolerate of any lawyer, let alone one as experienced and skilled as Counsel. Counsel’s baseless interjections and obstructionist commentary were ubiquitous; they pervaded the depositions in this case and even spilled over into the trial. It is the repeated nature of Counsel’s obstructionist deposition conduct that warrants sanctions here. (Footnotes omitted). Speaking objections are not the only form of coaching. In Jadwin v. Abraham,106 plaintiff’s

counsel accused defense counsel of coaching the witness by foot-tapping how to respond. What ensued,

as captured on the record, was nothing short of embarrassing.

In Jadwin, opposing counsel had what the court described as a “strained” relationship at best.

The relationship was so strained, in fact, that plaintiff’s counsel used two cameras to record the

deposition, one camera on the witness; the other trained on defense counsel. Somewhat surprisingly,

neither counsel objected to this arrangement. During one of the depositions, plaintiff’s counsel

repeatedly asked if defense counsel was signaling the witness how to answer through a series of foot

taps. Both the witness and defense counsel denied the accusation. Ultimately, defense counsel

repositioned the camera trained on him so that it was focused on his feet. Plaintiff’s counsel became

angry that his camera had been touched, and the decorum of the room degenerated from there. After

bickering at each other for a few moments which included plaintiff’s counsel taking defense counsel’s

phone and refusing to give it back, plaintiff’s counsel stopped the deposition, and both parties went to

the judge seeking relief.107

Plaintiff’s counsel sought a protective order prohibiting defense counsel from “touching or

threatening to touch [his] personal property again without his permission” as well as sanctions against

defense counsel for damaging the camera. Defendant’s counsel sought the appointment of a special

master to preside over future depositions.108 The court issued the protective order requested by

plaintiff’s counsel, although the court’s opinion exhibits disgust at counsel’s behavior.

“After reviewing the transcript of Ms. Smith’s deposition and considering the conduct of both counsel during the deposition, as highlighted by the foregoing transcript excerpt,

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the Court finds that the conduct of Plaintiff’s counsel and Defendants’ counsel pertaining to the ‘foot tapping and web camera incident’ establishes good cause for the issuance of a protective order against both counsel, to protect each of them from annoyance by the other during depositions. Defendants’ counsel should have refrained from moving the web camera. Plaintiff’s counsel should have refrained from escalating the conflict after the witness denied she had been coached by ‘foot tap.’ There was no need for either counsel to threaten or insult the other, and no need for Plaintiff’s counsel to goad Defendants’ counsel by obtaining possession of his phone and then refusing to return it to him, as retaliation in kind that only exacerbated the situation. It should not be necessary for any court to have to regulate the type of conduct which has been exhibited in Ms. Smith’s deposition. However, in this instance, the Court finds it necessary to do so to ensure the orderly conduct of depositions in this case. According [counsel] are ordered not to touch each other’s personal property at the depositions in this case, without the other’s permission.”109

The court also concluded that the defense request for a special master to preside over future depositions

was warranted. Jadwin is a good example of attorneys wasting time as well as their client’s money over

foolishness. Sadly, Jadwin is not the only reported case involving foot tapping.110

Beyond speaking objections and foot tapping lays a litany of other coaching tactics. In Tucker v.

Pacific Bell Mobile Services,111 during a deposition, plaintiffs’ counsel “wrote on a legal pad and showed it

to [his witness].” Plaintiffs’ counsel “also instructed [his witness] not to answer questions related to her

standing to bring the action and refused to permit defense counsel to question [the witness] about the

notes on the legal pad.”112 After the deposition, plaintiffs’ counsel threw away the notes. The court

sanctioned plaintiffs and their counsel for abuse of the discovery process.113 In Nagi v. Old Navy,114 a

deposition was conducted via videoconference. The counsel conducting the deposition saw the witness

looking down at their hands. The witness appeared to be receiving text messages from counsel providing

instruction as to how the question should be answered.115 The court ordered that all text messages sent

during the deposition were subject to discovery.116

One final area of coaching is worthy of discussion. May counsel discuss the substance of a

witness’s testimony while the witness is under oath? Occasionally, a witness may to ask to speak with

counsel before answering a question. Is this permitted? Federal Rule of Civil Procedure 30(c)(1) requires

that the examination of a deponent proceed in the same manner as an examination of a witness during

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trial. It is unimaginable that a judge would interrupt a cross examination and recess the trial to allow a

private conference between an attorney and his client.117 However, case law is conflicted on the issue of

whether an attorney may speak with his client during a previously scheduled recess during the course of

an examination.

Permitting at least some right to confer with the witness are Potashnick v. Port City Const. Co.,118

(a civil defendant has a right to confer with counsel during a recess at trial); Murray v. Nationwide Better

Health,119 (a deponent’s attorney may have a private conference with the deponent: (1) during a regularly

scheduled recess; (2) during any recess requested by the witness, so long as no question is pending; or (3)

at any time to determine whether a privilege should be invoked.); Ecker v. Wisconsin Central Ltd.,120

(during a break in the questioning, it is permissible for an attorney to discuss with the witness the

questions the attorney plans to ask once the deposition resumes); Okoumou v. Horizon,121 (speaking

during a break initiated by the witness is proper, while doing so during a break initiated by the defending

attorney is not); Circle Group Internet, Inc. v. Atlas, Pearlman, Trop & Borkson, P.A.,122 (the court “knows

of no rule that prohibits a witness from consulting with counsel before the witness answers a question.”);

McKinley Infuser, Inc. v. Zdeb,123 (an attorney is prohibited from speaking to a client during a break only

while there is a question pending); Stratosphere Corporation Securities Litigation,124 (an attorney is

prohibited from speaking to a client during a break only while there is a question pending); Dairyland

Power Co-op. v. U.S.,125 (“counsel shall be allowed to consult with witnesses during breaks in testimony,

however, they may not discuss the testimony of any other witness that has appeared before the Court”).

Conversely, finding there is no right to confer during a recess are Eggleston v. Chicago

Journeymen Plumbers’ Local Union 130,126 (denouncing private attorney-witness conferences during

deposition breaks, “[i]t is too late once the ball has been snapped for the coach to send in a different

play.”); LM Insurance Corp. v. ACEO, Inc.,127 (“once a deposition starts, counsel has no right to confer

during the deposition.”); Reynolds v. Alabama Dept. of Transp.,128 (a civil party does not have an absolute

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right to confer with counsel during short recesses, and non-party witnesses have no right to confer with

their directing attorney); Chapsky v. Baxter,129 (“private conferences during a deposition between a

deponent and his or her attorney for any purpose other than to decide whether to assert a privilege are

not permitted.”); Hall v. Clifton Precision, A Division of Litton Systems, Inc.,130 (an attorney may not confer

with a deponent during any recess in the deposition proceedings, including an overnight recess).

In light of the conflicting authority, counsel should check the law within the jurisdiction and, in

the meantime, proceed with caution.

Conclusion.

As a result of witness coaching “[e]vidence can be excluded or stricken; lawyers can be excluded

from the courtroom; adverse inferences can be drawn; juries can be instructed that the sequestration

order has been violated; a party or witness can be held in contempt; monetary sanctions can be imposed

on parties or lawyers; disciplinary proceedings can be instituted.”131 This is serious business. Counsel

must keep a watchful eye for evidence of coaching, and be prepared to bring the issue to the attention of

the court if and when necessary.

Nightmare No. 7 – Use and Abuse of Sanctions Motions.

Introduction. Inappropriate and unprofessional conduct within the context of litigation must to be policed.

One means of accomplishing this policing function is by way of a motion for sanctions. Within the federal

court system, the power of the court to order sanctions derives from the Federal Rules of Civil Procedure,

statute and the inherent power of the court. Within most state court systems, the source of authority is

largely the same. When are sanctions appropriate, and on what basis? What should be done when

motions for sanctions become a heavy-handed tactic designed to keep opposing counsel off-balance and

distracted? Whether counsel is seeking or resisting sanctions, it should never be taken lightly. Sanctions

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are high stakes, and they are not a game. The mere mention of the word “sanctions” has caused those

confronting the prospect with frightening nightmares.

Authority to Sanction.

Within the federal courts, there are essentially six sources of authority for the court to sanction

for improper conduct in litigation. These include Federal Rules of Civil Procedure 11, 26(g), 30(d) and 37,

and 28 U.S.C §1927. The sixth source of authority for the court to issue sanctions is the inherent power

of the court.

Federal Rule of Civil Procedure 11 authorizes federal courts to issue sanctions against counsel as

well as litigants who file pleadings, motions, or other papers for an improper purpose or without the

requisite level of evidentiary or legal support. Rule 11 sanctions are not available for other types of

misconduct such as discovery abuse,132 or inappropriate actions during trial.133 The goal of Rule 11 is to

deter frivolous filings to “curb abuses of the judicial system.”134 As such, “[e]very pleading, motion or

other paper” must be signed with a warranty that to the best of counsel’s “knowledge, information and

belief, formed after an inquiry reasonable under the circumstances,” (a) the factual statements made in

the filing have an evidentiary basis or are reasonably based on a lack of information, and (b) the legal

arguments are warranted under existing law or on the basis of a non-frivolous argument for the extension

or modification of existing law. Fed. R. Civ. P. 11(a)-(b).135 Counsel also warrants that the filing “is not

being presented for any improper purpose, such as to harass or to cause unnecessary delay or needlessly

increase the cost of litigation.”136

The test under Rule 11 is whether counsel’s conduct was “objectively reasonable at the time” the

filing was signed, Mopaz Diamonds, Inc. v. Inst. Of London Underwriters,137 and sanctions are only

appropriate “where it is patently clear that a claim has absolutely no chance of success under existing

precedents, and where no reasonable argument can be advanced to extend, modify or reverse the law as

it stands…”138

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Rule 11(b) specifies four standards to which counsel must adhere when fling with the court.139

First, filings must not be presented for an improper purpose such as harassment, unnecessary delay,

needlessly increasing the cost of litigation or for purposes of embarrassing an opposing party.140 Most

courts have held that improper purpose is determined by an objective rather than a subjective test,141 but

some courts appear willing to consider subjective motives.142

Second, counsel must make an objectively reasonable inquiry into the state of the law when

presenting a claim, defense or argument to confirm that the position being advanced is grounded in

existing law, or can reasonably be asserted as the basis to extend, modify or reverse existing law. If the

position being advance is objectively baseless and counsel has not made reasonable and competent

inquiry before advancing the position, sanctions are justified.143 The court need not find bad faith, and

good faith is not a defense.144

Third, any factual allegation must either have evidentiary support or be “likely to have evidentiary

support after a reasonable opportunity for further investigation or discovery.”145 In assessing whether

counsel’s inquiry into the factual support for the allegations was objectively reasonable, the court will

consider “whether the signer of the documents had sufficient time for investigation; the extent to which

the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion or

other paper; whether the case was accepted from another attorney; the complexity of the facts and the

attorney’s ability to do a sufficient pre-filing investigation; and whether discovery would have been

beneficial to the development of the underlying facts.”146

Fourth, any denials of factual contentions must be either “warranted on the evidence” or

“reasonably based on a lack of information or belief.”147 Denials of fact are treated like factual assertions

and must be objectively reasonable.

Rule 11 sanctions proceedings may be initiated either by a motion of one of the parties, or sua

sponte by the court.148 If the request for sanctions is initiated by counsel, the party against whom

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sanctions are being sought is entitled to a reasonable period of time to respond and is provided a 21-day

“safe harbor” during which the offending document may be withdrawn without consequence.149 If

initiated by the court, the safe harbor opportunity to withdraw the offending filing does not apply and,

under such circumstances, the court will “reserve such sanctions for situations that are akin to a

contempt of court.”150

Federal Rule of Civil Procedure 26(g) covers formal written discovery abuses. Essentially, Rule

26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner. The rule is

intended to curb discovery abuse by explicitly providing the imposition of sanctions. The Rule is intended

to deter both excessive discovery and evasion by requiring a certification that obliges counsel to stop and

think about the legitimacy of a discovery request, a response thereto, or an objection.

Under Rule 26, counsel certifies that initial and pre-trial disclosures are deemed true and correct

when signed. By signing formal written discovery requests, responses and objections, counsel certifies

that they are grounded in law, not served for an improper purpose and are not unreasonable or unduly

burdensome. The reasonableness of these certifications is determined at the time of signature so that if,

over the course of the litigation, the certifications are established to be demonstratively false, the

certification is not sanctionable if at the time of the signature it was reasonably believed to be true.

The duty to make a “reasonable inquiry” is satisfied if the investigation undertaken by the

attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective

standard similar to the one imposed by Rule 11.151 In making the inquiry, counsel may rely on assertions

by the client and on communications with other counsel in the case as long as that reliance is appropriate

under the circumstances. Ultimately, what is reasonable is a matter for the court to decide on the totality

of the circumstances.

The nature of the sanction is a matter of judicial discretion to be exercised in light of the

particular circumstances, and must comport with due process requirements. Similar to Rule 11, “[i]f a

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certification violates this rule without substantial justification, the court, on motion or on its own, must

impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.”

Federal Rule of Civil Procedure 30(d)(2) provides “[t]he court may impose an appropriate

sanction – including the reasonable expenses and attorney’s fees incurred by any party – on a person

who impedes, delays, or frustrates the fair examination of the deponent.” Rule 30(d)(2) does not limit

the types of sanctions available; it only requires the sanctions be “appropriate” as determined by the

sound discretion of the court.152

In practice, Rule 30(d)(2) applies to an attorney defending a deposition, but not the attorney

taking the deposition. There is no sanction for bad faith questioning. The correct action to be taken if the

questioner asks harassing or improper questions is to stop the deposition and move to terminate or for a

protective order. If successful, movant is entitled to fees and expenses incurred in bringing the motion.153

If unsuccessful, movant is at risk to pay the questioner’s fees and expenses in defending against the

motion.154 The only possibility for a sanction based on bad faith questioning is to appeal to the court to

do so using its inherent power.155

Federal Rule of Civil Procedure 37 governs motions for sanctions for discovery violations. The

Rule is comprehensive. Under Rule 37(a), a party found in violation of disclosure or production

obligations is at risk to pay the attorney’s fees incurred by the party making a motion as a result of the

violation. Under Rule 37(b), a variety of sanctions are available against any party who violates a court

order including adverse inferences; barring evidence, claims or defenses; striking pleadings; staying

further proceedings; dismissal; default judgment; contempt of court; payment of fees and expenses; and

“further just orders.” Under Rule 37(c), a failure to disclose information or the identity of a witness is

sanctionable by barring the violating party from using the information, or calling the witness, not

disclosed. In addition to, or instead of, this sanction, the court may order payment of attorney’s fees

incurred as a result of the nondisclosure, inform the jury of the nondisclosure or impose other

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appropriate sanctions. Under Rule 37(d), the failure to attend one’s own deposition is sanctionable in a

fashion similar to that provided in Rule 37(b). “Instead of or in addition to these sanctions, the court

must require the party failing to act, the attorney advising that party, or both to pay the reasonable

expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or

other circumstances make an award of expenses unjust.” Finally, under Rule 37(f), a party’s failure to

participate in the process of developing and submitting discovery plan may be met with sanctions

(attorney’s fees).

A statutory basis for sanctioning attorneys is found in 28 U.S.C. §1927 which states that “[a]ny

attorney … who so multiplies the proceedings in any case unreasonably and vexatiously may be required

by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred

because of such conduct.” This statute serves “to deter unnecessary delays in litigation.”156 Courts are

divided on whether law firms, in addition to individual attorneys, may be subject to sanction.157

Section 1927 considers an attorney’s conduct and behavior throughout the lawsuit as “course of

conduct,”158 whereas Rule 11 applies to individual filings. Consequently, filing a frivolous complaint would

violate Rule 11 but not Section 1927 because one filing would not “multiply” the proceedings.159

Whether a demonstration of bad faith is required is unclear from the decisions. Some courts have

sanctioned an attorney under Section 1927 even where bad faith is not shown but the conduct “viewed

objectively, manifests either intentional or reckless disregard of the attorney’s duties to the court.”160

Motions to disqualify opposing counsel that were determined to be frivolous and presented for

harassment or delay have been sanctioned under Section 1927,161 as has continuing to pursue actions

that were clearly time-barred.162

The final basis of authority to sanction is the inherent power of the court. The power of federal

courts to control abusive conduct in litigation through its inherent powers has long been recognized.

These powers flow from the nature of the judiciary itself. These powers “are necessary to the exercise of

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all others”163 and include the powers to impose obedience, respect and decorum, and submission to

lawful mandates; and “to levy sanctions in response to abusive litigation practices.”164 “The Court’s prior

cases have indicated that the inherent power of a court can be invoked even if procedural rules exist

which sanction the same conduct.”165 “These other mechanisms, taken alone or together, are not

substitutes for the inherent power, for that power is both broader and narrower than the other means of

imposing sanctions.”166

Courts have broad discretion to determine the appropriate sanction to be imposed.167 If

appropriate, courts may sanction a party with the entire cost of the litigation.168 However, the court has

restricted itself to awarding attorney’s fees only in “those cases where the litigant has engaged in bad-

faith conduct or willful disobedience.”169

Practice Pointers When Seeking Sanctions.

When confronted with sanctionable conduct by the adversary, the questions are if, and when, to

seek sanctions. The goal of a motion for sanctions is either to deter the improper behavior or tactics in

the future, or to remediate the consequences of prior bad behavior, or both. In any or all events, the

object is to present the issue to the court in such a way as to persuade the court that the motion is well-

taken and deserving of the relief being sought.

In his thoughtful piece entitled, Persuading Courts to Impose Sanctions on Your Adversary,

published the American Bar Association’s periodical, Litigation, Douglas S. Pepe provided several tips to

consider when seeking sanctions.170 Mr. Pepe’s first tip was to know the rules and use the appropriate

vehicle as the basis for seeking sanctions. Mr. Pepe had several other tips as well:

Tip Number 2: Show bad faith, even if it’s not required. Demonstrating bad faith is not always required by the law, but it is almost always required as a matter of effective advocacy. Everybody makes mistakes. Judges understand that. Showing bad faith can have a significant impact both on the court’s willingness to impose sanctions and on the type of sanction available.

* * *

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Whatever the required standard is under the applicable sanctions power, establishing your adversary’s bad faith will enhance your request for sanctions. Three principal reasons to show bad faith are, first, greater culpability means more severe sanctions. Courts have broad discretion in fashioning an appropriate sanction for litigation misconduct. Bad faith is directly relevant to the court’s determination of what type of sanction to impose. Some sanctions, including dismissal or default for discovery violations under Rule 37, are considered so severe that the lower courts must make specific findings of bad faith, even when lesser sanctions under the same rule do not require it. Demonstrating that your adversary’s misbehavior lies on the more egregious end of the sliding scale of culpability increases the likelihood that the more significant sanction will issue. Showing bad faith even where not required can, in certain cases, alleviate the necessity of proving other elements.

* * * Third, demonstrating your adversary’s bad faith is persuasive. Sanctions are fundamentally punitive. Many judges want to know that they are addressing real misconduct before they break out the big stick.

* * * Tip Number 3: Show prejudice, even if you don’t have to. No harm, no foul. There is truth in this principle. While many sanctions rules do not require proof of prejudice as an express element, the principle of “no harm, no foul” is a ubiquitous undercurrent in the law of sanctions. Meet it head-on by showing the court not only that your opponent misbehaved, but also that your case and your client have suffered as a result.

* * * When showing prejudice, be specific. If the opposing party lost a set of handwritten notes from a key meeting, show the court precisely how you would use those notes at trial. Establish why the meeting was important. Highlight discrepancies in the testimony of other witnesses. Demonstrate why the notes are important to test the credibility of the witnesses. Explain how you have tried to obtain this information from other sources but are left with no meaningful alternative to the missing notes.

* * * Tip Number 4: Ask for the right sanction. Too often lawyers seek sanctions without paying sufficient attention to which sanction is the right tool for the job. That is a mistake. Before filing, ask yourself two questions: What sanctions are available for my adversary’s misconduct? Which of these sanctions will further my client’s interests the most? The answers to these two questions will identify the right sanction to request from the court. Then ask for it. Directly.

* * * Once you have identified the range of sanctions available, pick the sanction that best suits your client’s needs. If you have caught your adversary dead to rights woodshedding a witness, do you want to ask for monetary sanctions, or do you want the witnesses’s testimony precluded? If your adversary belatedly produced a slew of e-mails, do you want to ask for a postponement of the discovery cutoff and seek to recall witness, or request an adverse inference? The answers will depend on the facts and your strategy for the case. The important point is that the strategy should drive the kind of sanctions sought, not the other way around.

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Practice Pointers When Opposing Sanctions.

Some adversaries inappropriately use sanctions motions as a tactic to distract and create a

sideshow. In the spirit of “Rambo litigation,” the sanctions motion is an affirmative weapon rather than a

defensive mechanism intended to right the wrong committed by the other side. Rambo litigators take the

adversarial nature of litigation off the charts. Personal attacks on other lawyers, hostility, insulting

behavior, utter rudeness and obstructionist conduct are their hallmarks.171 Much has been written about

the dirty litigation tactics of the Rambo lawyer, and one need only Google “Rambo Litigation” to be

inundated with horror stories of awful behavior by lawyers who view litigation as more of a war time

battle zone than a civilized forum for the resolution of disputes. There are no easy answers or failsafe

approaches when trying a case against Rambo. There are, however, a number of practical tips that may

be useful should Rambo decide to take the offensive with a spurious motion for sanctions.

Preparation is key. Bluster and bullying are helpful masks to disguise the fact that Rambo may

not have a handle on the facts or law applicable to the case. Rambo has to fight about everything,

because Rambo may well not know what is important and what is not. Conversely, knowing the relevant

documents, the pertinent testimony of critical witnesses and the controlling law will help keep focus on

what matters, and what does not. By being prepared, and staying focused on what matters, counsel will

avoid heading down side streets that lead nowhere. If Rambo is intent on pursuing a baseless motion for

sanctions, a ready response will be available. Counsel will be able to explain why the issue about which

Rambo is blustering in his motion does or does not matter to the case. This fact alone will give counsel an

upper hand in dealing with a spurious sanctions motion.

Keep emotions intact. Rambo intends to distract, frustrate, agitate and anger. By doing so,

Rambo gets counsel off his game leading to mistakes and missteps. A natural inclination when dealing

with Rambo is to fight fire with fire. If counsel falls into this quagmire, the moral high ground is lost.

When it comes time to argue the motion for sanctions, the judge will then be presented with back-and-

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forth finger-pointing as to which lawyer committed the worse offense. Judges simply do not enjoy these

types of skirmishes and will likely wish a pox on everyone’s house rather than recognizing what a truly

bad actor Rambo is.

Fight the battle only when necessary. Not every issue, task or disagreement is equally important.

Some matter greatly; some matter little. Know which is which, and why. Fight only those battles that

make a difference. Not only is this easier on the client’s pocketbook, and better for counsel’s blood

pressure, it once again gives counsel the high ground when arguing Rambo’s motion for sanctions. Over

time, the judge will know who is being difficult and fighting for fighting’s sake versus who is looking for

compromise, when possible. The judge will have far more patience and will likely give more deference to

the latter.

Know the audience and what is expected. Beyond rules of civil procedure, most judges have

ways they prefer to do things, particularly when it comes to discovery and motion practice. Knowing how

the judge likes it, and approaching an issue in that fashion is beneficial. Counsel can tailor the pleading or

presentation to meet the judge’s preferences and expectations. Rambo will not likely do that.

Maintain a record of everything. The Rambo litigator is not honest. If he were, he would not be

Rambo. Rambo is a brute. When dealing with Rambo, all communications need to be documented. That

is a pain, but it is important. It will come in handy. The documentation should simply be factual and

professional, not confrontational. Improper conduct should be recorded. Offers to reasonably

compromise differences should also be recorded. When the baseless motion for sanction arrives, this

record will likely prove to be invaluable evidence in defeating the motion.

Be truthful and avoid embellishing. When responding to the motion for sanctions, stay true to

the facts and do not embellish. Do not enhance the facts. Honesty and sincerity, coupled, of course, with

thorough preparation, will be recognized and respected.

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In the case of Riccard v. Prudential Insurance Company,172 Riccard sought sanctions against

Prudential under Rule 11. In the process, Riccard and his counsel violated virtually every one of the

foregoing practice pointers listed above. Riccard and his counsel not only failed in their attempt to have

sanctions imposed on Prudential but were sanctioned themselves for filing a baseless motion for

sanctions under Rule 11. To fully appreciate this case, a detailed discussion of the background is

necessary.

Riccard was a long term employee of Prudential Insurance Company. After many years of service,

Riccard went on short-term disability. Following his stint on disability, Riccard returned to work. After his

return, he was demoted. A short time later, Riccard went on long-term disability, but because of his

demotion he received less in benefits than he would have received but for the demotion. Riccard was

upset.

Riccard launched a bitter campaign against Prudential that included filing (i) four lawsuits; (ii)

complaints alleging misconduct by Prudential with the Securities and Exchange Commission, the United

States Attorney’s Office, the Banking and Insurance Department of one state, and the Agricultural

Department of another; (iii) a motion for sanctions against Prudential and some of the attorneys

representing it; and (iv) ethical complaints with the Bar Associations of two states against those

attorneys.173

The district court found Riccard’s lawsuits largely baseless for a variety of reasons, mostly

procedural in nature because Riccard had agreed to arbitrate the claims, not litigate. Apparently, neither

Riccard nor his lawyer thought much of the court’s reasoning, so they kept after it. The court kept

striking them down. Ultimately, Riccard appealed nine trial court orders, including appeals from sanction

and civil contempt orders. Riccard’s attorney, Rasch, also was an appellant in the case because he

challenged the sanctions which the trial court imposed upon him.174

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In all, Rasch filed four lawsuits on Riccard’s behalf. The first was for breach of the employment

contract. The court ordered the case to arbitration. Riccard later sought to overturn this order

challenging the validity of the arbitration agreement.175 The court denied Riccard’s challenge. Riccard did

not appeal from this lawsuit.

Riccard then filed a second lawsuit against Prudential after being issued a “right to sue” letter by

the EEOC. Again, Prudential sought to compel mediation. Again the court ordered arbitration over

Riccard’s challenge to the validity of the arbitration agreement. After 50 evidentiary sessions and hearing

from 22 witnesses, the arbitrator ruled against Riccard. The district court affirmed the arbitrator’s

decision after which Riccard appealed.176

Riccard also filed a third lawsuit alleging fraudulent misrepresentation and deceit in the denial of

certain disability and medical benefits in violation of ERISA. He later added a claim for breach of fiduciary

duty. Prudential moved to dismiss a portion of this lawsuit which was granted. Leave was granted to file

an amended complaint in greater detail.177 Riccard refilled, after which the court dismissed the lawsuit.

Riccard appealed.

While Riccard’s first two lawsuits were pending, Riccard, via his attorney Rasch, filed a Rule 11

motion for sanctions against Prudential alleging that Prudential had made misrepresentations to the

court pertinent to the arbitration agreement. The district court denied the motion for sanctions, finding

that it was “baseless” and filed in bad faith because Prudential had “not attempt[ed] to mislead th[e]

Court…” The district court also determined that Riccard and Rasch knew the motion for sanctions was

baseless when they filed it.178

Prudential then filed a motion requesting that it be awarded the attorney’s fees it had incurred in

opposing the motion for sanctions. After conducting a sanctions hearing, and giving Riccard and Rasch the

opportunity to suggest possible sanctions, the district court determined that monetary sanctions against

Riccard would not suffice to prevent him from filing further baseless motions and entered an injunction

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prohibiting Riccard or an individual or entity acting on his behalf from filing any new actions against

Prudential without first obtaining leave of court. Determining that monetary sanctions would be an

appropriate and sufficient deterrent to Rasch, however, the court ordered him to pay $10,000 for filing

the baseless Rule 11 motion. Riccard and Rasch appealed.179

A few months after the injunction was entered prohibiting Riccard from filing any new “actions”

against Prudential without leave of the court, Rasch, on Riccard’s behalf, filed what were styled

“Complaints” against Prudential with several regulatory and governmental agencies. Those complaints

alleged criminal activity by Prudential. Riccard and Rasch also filed “ethical grievances” with the Florida

and New York State Bar Associations against attorneys representing Prudential.180

Prudential filed a motion to hold Riccard in contempt for violating the injunction the district court

had entered against him. After a show cause hearing, the district court did so. The court also found that

Prudential was entitled to an award of attorney’s fees in connection with the contempt proceedings and

awarded it $33,357, entering judgment against Riccard for that amount. A short time later, Riccard filed a

fourth lawsuit realleging age discrimination. This lawsuit was also dismissed.

Among Riccard’s many appeals were the appeals of the trial court’s orders imposing sanctions

against Riccard and Rasch for filing the sanctions motions in bad faith.181

On appeal, the court carefully reviewed the record for support for the motion for sanctions that

had been filed by Rasch on Riccard’s behalf. The trial court determined the sanctions motion was

baseless and filed in bad faith because Riccard and Rasch lacked a reasonable factual basis for the motion.

As a sanction for filing the unsupported Rule 11 motion, Riccard was enjoined from filing any new actions

against Prudential without first obtaining leave of court, and Rasch was ordered to pay Prudential

$10,000.182 The appellate court affirmed the trial court’s ruling.

Rule 11 requires district courts to impose ‘appropriate sanctions,’ after notice and a reasonable opportunity to respond, where an attorney or party submits a pleading to the court that: (1) is not well-grounded in fact, i.e., has no reasonable factual basis; (2) is not legally tenable; or (3) is submitted in bad faith for an improper purpose. See Fed. R. Civ. P.

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11(b). The objective standard for assessing conduct under Rule 11 is ‘reasonableness under the circumstances’ and ‘what [it] was reasonable to believe at the time’ the pleading was submitted. Baker v. Alderman, 158 F.3d 516, 524 (11th Cir.1998). Sanctions are warranted when a party exhibits a ‘deliberate indifference to obvious facts,’ but not when the party's evidence to support a claim is ‘merely weak.’ Id. The district court did not abuse its discretion in imposing sanctions against them for filing the motion for sanctions. Their motion was part of a pattern of reargument and re-litigation that has marked their efforts in this lawsuit, and that is not a proper use of Rule 11. See Advisory Committee Notes, 1993 Amendments (“Rule 11 motions [should not] be prepared [in order to] emphasize the merit’s of a party's position....”); see also Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir.1988) (imposition of sanctions was supported by evidence that litigant brought action based on allegations which had been adversely decided against him previously). Id. at 1294. [T]heir Rule 11 motion was baseless. …[T]hey filed the Rule 11 motion anyway, requiring the district court and Prudential to spend time and effort dealing with it. They should have been sanctioned for their bad faith motion, as they were.

The moral of the story is that a baseless sanctions motion can serve as the basis for sanctions

against the party who filed it. In the end, that is the best defense to Rambo’s dirty litigation tactic.

Conclusion.

Sanctions motions serve a purpose although they are certainly subject to abuse. A sanctions

motion should never be filed without serious consideration, and the response to such a motion should

never be taken lightly.

1 Available: http://www.forbes.com/sites/jennagoudreau/2012/09/24/most-common-workplace-anxiety-

dreams-what-they-mean/ 2 According to a Staples Small-Business Survey, more than half of small-business professionals said that

work has actually become part of their dreams. Fifty-one percent of those surveyed said that they “sleepwork” (i.e.

dream about work), and nearly 70 percent of those “sleepworkers” report they wake up and put their “work dreams”

to action. Available: http://business.time.com/2008/01/30/dreaming_about_work_is_normal/ 3 The Resource Guide for Managing Complex Litigation, published by the National Judicial College in 2010

(the “MCL 2010”), can serve as a handy resource for attorneys who are engaged in complex litigation and want to

view matters from a judge’s perspective. Available: http://www.judges.org/pdf/complex-lit0110.pdf 4 To borrow from Mr. Sherlock Holmes, “the strangest and most unique things are very often connected not

with the larger but with the smaller [cases]… When I have heard some slight indication of the course of events, I

am able to guide myself by the thousands of other similar cases which occur to my memory.” The Adventures of

Sherlock Holmes, THE RED-HEADED LEAGUE, Sir Arthur Conan Doyle. 5 The California Rules of Court for Complex Civil Litigation (Rule 3.400) define a “complex case” as:

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an action that requires exceptional judicial management to avoid placing unnecessary burdens on

the court or the litigants and to expedite the case, keep costs reasonable, and promote effective

decision making by the court, the parties, and counsel.

In deciding whether an action is a complex case, the court must consider, among other things, whether the

action is likely to involve: (1) Numerous pretrial motions raising difficult or novel legal issues that will be time-

consuming to resolve; (2) Management of a large number of witnesses or a substantial amount of documentary

evidence; (3) Management of a large number of separately represented parties; (4) Coordination with related actions

pending in one or more courts in other counties, states, or countries, or in a federal court; or (5) Substantial post

judgment judicial supervision.

Under the California Rules for Complex Civil Litigation, construction defect claims involving many parties

or structures are presumptively included in the category of complex cases. 6 See The Unintended Client and Non-Engagement Letters, by Tomas P. Sukowicz, Los Angeles County Bar

Update, January 2004, Vol. 24, No. 1, available: http://www.lacba.org/showpage.cfm?pageid=3537 7 See Comments to Rule 1.1 at ¶ 1,5.

8 “He” should be interpreted to mean “he or she”; and “she” should be interpreted to mean “he or she.”

9 As used herein, the term “ADR” refers to any binding or non-binding procedures agreed upon by the

parties to resolve disputes outside of traditional courtroom litigation, or any combination of such procedures. 10

A 2011 survey of Fortune 100 companies reveals that nearly all companies “have recent experience with

mediation, which is now employed more extensively across the broad swath of civil conflict and the great majority

of companies foresee its use in the future.” While the use of arbitration has diminished since, when the last similar

survey was conducted, it nevertheless “is and always will be a critical and essential feature of the landscape of

commercial dispute resolution.” Similarly, many companies appear “to be employing strategies aimed at deliberate,

proactive, and systematic assessment of conflicts in the early stages — perhaps even the first sixty days — in order

to lay the groundwork for business decisions about their forward management.” See Thomas J. Stipanowich and J.

Ryan Lamare, “Living with ADR: Evolving Perceptions and Use of Mediation, Arbitration, and Conflict

Management in Fortune 1000 Corporations,” Harvard Negotiation Law Review [Vol. 19:1], pp. 60-67. 11

See How an Arm Wrestle Resolved a Major Airline Dispute, published February 21, 2014, available:

http://gizmodo.com/how-an-arm-wrestle-resolved-a-major-airline-dispute-1527658365

See also New Zealand chief executives arm-wrestle to settle dispute, available:

http://www.abc.net.au/news/2003-03-10/nz-chief-executives-arm-wrestle-to-settle-dispute/1814612 12

See e.g., MRPC Rule 1.4 “Communications”:

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed

consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be

accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that

the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed

decisions regarding the representation. 13

See M.R.C.P. Rule 1.7. 14

MCL, 3rd

Edition, Federal Judicial Center (1995), § 20.23 (emphasis added) (the “MCL 1995”). 15

Another advantage to having experience in the construction industry is that lead counsel is likely to know

who the major players are and what weight their opinions deserve based upon previous experience or reputation. 16

See Comments on Rule 1.3 Diligence. 17

The litigation forecast should be reviewed and updated regularly. Counsel may choose to do so at billing

time on a regular basis in order to coordinate actual billings with the projected forecast. Any material change or

trend that is noted should be reported to and discussed with the client. 18

For purposes of reporting and payment of fees, costs and expenses, the term “client” frequently includes

insurance companies and their representatives. 19

See also MCL 2010, §1.2, p. 13 (“The judge should let the attorneys know that the court recognizes the

added demands and burdens that complex litigation places on them; however, the judge should emphasize that the

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court expects them to (1) fulfill their obligations as advocates in a manner that will foster and sustain good working

relations among themselves and with the court, (2) communicate constructively and civilly with one another and

attempt to resolve disputes informally as often as possible, (3) avoid unnecessary contentiousness, and (4) limit the

controversy to material issues that are genuinely in dispute. Some courts are creating civility codes to address and

promote professional behavior.”). 20

See also M.R.C.P. Rule 1.4, Communication. 21

See VentureBeat, “Let’s dump WebEx and GoToMeeting for hosting web conferences,” published August

27, 2013 (“Yes, ‘Google Hangouts’ doesn’t exactly scream business. But so what? Hangouts offers the capability to

chat with up to 10 people on a video call for free. You may also collaborate on Drive documents while you talk on a

Hangout. This is an especially attractive offer for all the small businesses out there that don’t want to pay for more

software and for enterprises that already use Google Apps”). Available: http://venturebeat.com/2013/08/27/lets-

dump-webex-and-gotomeeting-for-hosting-web-conferences/ 22

See, e.g., Andersen, et al. v. Dist. Ct. of Larimer Cnty., 629 P.2d 603 (Colo. 1981). 23

See M.R.P.C. 1.1. 24

See also MCL 1995, §20.23 (discussing attorney withdrawal). 25

M.R.P.C. 1.16 advisory comment 4. 26

M.R.P.C. 1.16(d). 27

See e.g., C.R.C.P. 26(a)(2)(B) (“With respect to a witness who is retained or specially employed to provide

expert testimony, or whose duties as an employee of the party regularly involve giving expert testimony, be

accompanied by a written report or summary... In addition, if a report is issued by the expert it shall be provided.”).

But see F.R.C.P. 26 (a)(2)(B) (“Unless otherwise stipulated or ordered by the court, this disclosure must be

accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially

employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve

giving expert testimony.”). 28

See, e.g., F.R.C.P. 26(a)(2)(B)(i) – (vi). 29

See, e.g., F.R.C.P. 26(b)(4)(B). 30

See Bank Crussels Lambert v. Chase Manhattan Bank, 175 F.R.D. 34, 43 (S.D.N.Y. 1997); Ager v. Jane C.

Storment Hospital & Training School for Nurses, 622 F.2d 496, 501 (10th Cir. 1980); Jamison v. Gall, 44 P.3d 233,

240 (Colo. 2002). 31

F.R.C.P. 26(a)(2)(C). 32

Fed. R. Civ. P. 26 advisory committee’s note (2010). 33

Downey v. Bob’s Disc. Furniture Holdings, 633 F.3d 1, 3 (1st. Cir. 2011). 34

Areas USA SJC v. Mission San Jose Airport, No. C11-04487 HRL, 2012 WL 5383310, at *1 (N.D. Cal.

Nov. 1, 2012). 35

Empire Lumber v. Indiana Lumbersmens Mut. Ins., No. 3:10-cv-00533-REB, 2012 WL 4470876, at *6 (D.

Idaho Sept. 27, 2012). 36

But See, Colo. Formal Ethics Op. 108. 37

See Transportation Equip. Sales Corp.; 930 F. Supp. 1187 (N.D.Ohio 1996); State Compensation Ins. Fund

v. WPS, Inc., 82 Cal. Rptr.2d 799, 807-08 (Cal.App. 1999). Cf. In re United Mine Workers of America Employee

Benefit Plans Litigation, 156 F.R.D. 507 (D.D.C. 1994) (District Court acknowledges ethical issue, notes ABA

Formal Opinion 368, but decides motion to compel based solely on evidentiary issue of waiver of privilege); Ethics

Advisory Opinion Comm. of the Utah State Bar Op. 99-01 (1999). 38

Am. Express v. Accu-Weather, Inc., 1996 WL 346388 at *2 (S.D.N.Y. 1996); Transportation Equip. Sales

Corp. v. BMY Wheeled Vehicles, 930 F. Supp. 1187 (N.D.Ohio 1996); Resolution Trust Corp. v. First of Am. Bank,

868 F.Supp. 217, 219–20 (W.D.Mich. 1994); State Compensation Ins. Fund v. WPS, Inc., 82 Cal. Rptr.2d 799, 807-

08 (Cal.App. 1999); ABA Formal Op. 92-368 (1992); Colo. Formal Ethics Op. 108; Utah State Bar Op. 99-01;

North Carolina Bar Ass’n, Proposed RPC 252 (1997); Maine Advisory Op. 146 (1994); Florida Bar Ass’n Op. 93-3

(1993). 39

See Am. Express, 1996 WL 346388, at *2; First Am. Bank, 868 F. Supp. At 219–20; WPS, 82 Cal. Rptr. 2d

799, 807–08; Colorado Formal Ethics Op. 108. 40

F.R.C.P. 26(b)(5). 41

See, e.g., Corey v. Norman, Hanson & Detroy, 742 A.2d 933, 941–42 (Me. 1999); Mendenhall v. Barber-

Greene Co., 531 F.Supp. 951, 954–55 (N.D. Ill. 1982). 42

Jones v. Eagle-North Hills Shopping Centre, L.P., 239 F.R.D. 684, 685 (E.D. Okla. 2007). 43

See, e.g., In re Sealed Case, 877 F.2d 976 (D.C.Cir. 1989).

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44

See, e.g., Jones v. Eagle-North Hills Shopping Centre, L.P., 239 F.R.D. 684, 685 (E.D. Okla. 2007); Floyd

v. Coors Brewing Co., 952 P.2d 797, 809 (Colo. App. 1997), rev’d on other grounds, 978 P.2d 663 (Colo. 1999)

(the Colorado Court of Appeals adopted the modern approach with the following factors: (1) whether reasonable

precautions were taken to prevent the disclosure of privileged information; (2) the number of inadvertent disclosures

made; (3) whether the disclosure effectively destroyed confidentiality to the extent that it cannot be restored; (4)

whether the disclosing party sought remedial measures in a timely fashion; and (5) consideration of fairness). 45

See, e.g., In re Sealed Case, 877 F.2d 976 (D.C.Cir. 1989); In re Martin Marietta Corp., 856 F.2d 619,

623-24 (4th Cir. 1988), cert. denied 490 U.S. 1011 (1989). 46

In re von Bulow, 828 F.2d 94, 102 (2d Cir. 1987). 47

One must be careful to become too reliant on “claw-back” provisions because one is clawing back after

opposing counsel already has the information that is in the document – one cannot “unring the bell” and the

information may be used against your client in some way in the future. 48

Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (quoting The Sedona Conference,

The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document

Production (March 2003), available at http://www.thesedonaconference.org/publications_html (Comment 10a:

‘Because of the large volumes of documents and data typically at issue in cases involving production of electronic

data, courts should consider entering orders protecting the parties against any waiver of privileges or protections due

to the inadvertent production of documents and data . . . . Such an order should provide that the inadvertent

disclosure of a privileged document does not constitute a waiver of privilege, that the privileged document should be

returned (or there will be a certification that it has been deleted), and that any notes or copies will be destroyed or

deleted. Ideally, an agreement or order should be obtained prior to any production.’)). 49

See Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of N.M., No. CIV 09-0885 JB/DJS, 2010

WL 4928866 (D.N.M. Oct. 22, 2010). 50

Rajala v. McGuire Woods, LLP, No. 08-2638-CM-DJW, 2010 WL 2949582 (D. Kan. July 22, 2010). 51

Other advice for drafting an effective claw-back agreement includes establishing that an inadvertent

production is not a waiver; incorporating the claw-back agreement into a protective order; defining the steps the

parties will take to prevent inadvertent disclosures; establishing procedures for invoking the claw-back; establishing

a framework with respect to whether a document is privileged or confidential; not limiting the documents to which

the agreement applies; and agreeing to a procedure to deal with highly confidential information that was disclosed

without the proper designation. See Best Practices for Preparing a Clawback Agreement available at http://

www.mayerbrown.com/files/Publication/df84db5e-d6d3-4f4a-b700-12c589aba083/ Presentation

/PublicationAttachment/770bf74c-7245-4275-bf96-24abd7ef2a4e/121031-WDC-Newsletter-EDRM-TOM.pdf 52

Beasley v. Huffman Mfg. Co., 97 Ill.App. 3d 1, 5, 422 N.E.2d 241, 244 (3rd

Dist. 1981). 53

U.S. v. Cook, 608 F.2d 1175, 1186 (9th

Cir. 1979). 54

Luce v. U.S., 469 U.S. 38, 41, 83 L.Ed. 443, 448, 105 S.Ct. 460 (1984). 55

See e.g., Douglas L. Colbert, The Motion in Limine in Politically Sensitive Cases: Silencing the Defendant

at Trial, 39 Stan. L. Rev. 1276 (1987) (motions in limine are within the court’s authority to manage the course of the

trial). 56

Jones v. Kansas City, 76 S.W.2d 340, 342 (Mo. 1934). 57

Id. 58

Huggins v. City of Hannibal, 280 S.W. 74 (Mo. App. 1926). 59

People ex rel. Dept. of Pub. Works v. Graziadio, 231 Cal. App. 2d 525, 534 (1964). 60

St. Louis Housing Authority v. Barnes, 375 S.W.2d 144, 148 (Mo. 1964). 61

Under Federal Rule of Evidence 411, evidence that a person was or was not insured against liability is not

admissible to prove whether the person acted negligently or otherwise wrongfully. Most states address the issue

similarly. A court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or

proving agency, ownership, or control. There was no alternative proper purpose offered by the transit authority as

no such alternative existed. The courts have with substantial unanimity rejected evidence of liability insurance for

the purpose of proving fault, and absence of liability insurance as proof of lack of fault. At best, the inference of

fault from the fact of insurance coverage is tenuous. Knowledge of the presence or absence of liability insurance

could induce juries to decide cases on improper grounds. McCormick §168; Annot., 4 A.L.R.2d 761. 62

People v. Graves, 74 Ill. 2d 279, 285, 384 N.E.2d 1311 (1979) (affirming a summary conviction of

contempt against an attorney who violated an order in limine); Brown v. Bozorgi, 234 Ill. App. 3d 972, 977, 602

N.E.2d 48, 51 (1st Dist. 1992) (trial court cured any prejudice that resulted from a violation of the order in limine by

sustaining the objection to the evidence and directing the jury to disregard).

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63

Marotta v. General Motors Corp., 108 Ill. 2d 168, 177, 483 N.E. 2d 503, 506 (1985). 64

Tomanszewski v. Godbole, 174 Ill. App. 3d 629, 634, 529 N.E. 2d 260, 264 (3rd

Dist. 1988). 65

721 F.3d 606 (8th

Cir. 2013). 66

987 A.2d 960 (Vermont, 2009). 67

Id. at 966-967. 68

State v. Wood, 146 Vt. 57, 57, 498 A.2d 494, 495 (1985). 69

Lamell Lumber Corp. v. Newstress Int’l, Inc., 2007 VT 83, ¶ 23, 182 Vt. 282, 938 A.2d 1215. 70

State v. Mears, 170 Vt. 336, 345, 749 A.2d 600, 607 (2000); Lamell Lumber, 2007 VT 83, ¶ 23, 182 Vt.

282, 938 A.2d 1215; see also Chambers v. NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)

(reviewing trial court's exercise of its inherent powers for abuse of discretion); Arizona v. Washington, 434 U.S. 497,

514, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (trial judge’s declaration of a mistrial “is entitled to great deference”). 71

987 A.2d 960 (citing Tucker v. Division Sales, Inc., 734 N.E.2d 165, 169 (Ill. 2000)). 72

Id. at 970. 73

See Model Rules of Professional Conduct Rule 3.4(b) (Fairness to Opposing Party and Counsel). 74

See Model Rules of Professional Conduct Rule 3.3(a)(3) (Candor Toward the Tribunal). 75

See Model Rules of Professional Conduct Rule 8.4(c) (Misconduct). 76

See Model Rules of Professional Conduct Rule 1.1 (Competence). 77

Geders v. United States, 425 U.S. 80, 90 n.3 (1976); Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D.

Pa. 1993). 78

Ibarra v. Baker, 338 F. App’x 457, 465 (5th Cir. 2009) (citing John S. Applegate, Witness Preparation, 68

Tex. L. Rev. 277 (1989)). 79

Steven Lubet, Expert Witnesses: Ethics and Professionalism, 12 Geo. J. Legal Ethics 465, 471 (1999). 80

In re Eldridge, 82 N.Y 161 (1880). 81

Joseph D. Piorkowski Jr., Note, Professional Conduct and the Preparation of Witnesses for Trial: Defining

the Acceptable Limitations of Coaching, 1 Geo. J. Legal Ethics 397, 401 (1987); see also “Witness Preparation

Memos Raise Questions about Ethical Limits,” 14 Laws. Man. On Professional Conduct (ABA/BNA) 48 (1998). 82

See generally Piorkowski, supra, at 401–4. 83

See District of Columbia Bar Legal Ethics Comm., Op. 79 (1979) (a lawyer’s suggestion of a choice of

words that might be employed to make the witness’s meaning clear is permissible if the substance of the ultimate

testimony, as far as the lawyer knows or ought to know, remains truthful and is not misleading). 84

See D.C. Ethics Op. 79. 85

Nicole LeGrande & Kathleen E. Mierau, Witness Preparation and the Trial Preparation Industry, 17 Geo.

J. Legal Ethics 947, 954 (Summer 2004). 86

Id. at 955. 87

D.C. Ethics Op. 79, at 140 (1979). 88

Id. at 130–40. 89

See, e.g., Black Horse Lane Assocs., L.P. v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000) (“[W]hen

a witness is designated by a corporate party to speak on its behalf pursuant to Rule 30(b)(6), ‘producing an

unprepared witness is tantamount to a failure to appear’ that is sanctionable.”). 90

Stephen M. Goldman & Douglas A. Winegardner, The Anti-False Testimony Principle and the

Fundamentals of Ethical Preparation of Deposition Witnesses, 59 Cath. U. L. Rev. 1, 55, 56 (Fall 2009). 91

Id. at 57. 92

Id. at 58. 93

338 F. App’x 457 (5th Cir. 2009) 94

Nicole LeGrande and Kathleen E. Mierau, Witness Preparation and the Trial Preparation Industry, 17

Geo. J. Legal Ethics 947, 951 (Summer 2004). 95

Fed. R. Civ. P. 30(c)(2). 96

See Fed. R. Civ. P. 32(d)(3) (requiring that objections to the form of the question be made during the

deposition in a timely manner or else they are waived)). 97

Fed. R. Civ. P. 32(d)(3)(A). 98

Stewart v. Colonial W. Agency, 87 Cal. App. 4th 1006, 1014–15 (2001). 99

See, e.g., Fed. R. Civ. P. 30 (d)(3)(A) (stating that “[a]t any time during a deposition, the deponent or a

party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that

unreasonably annoys, embarrasses, or oppresses the deponent or party”). 100

No. D054852, 2009 WL 4810694, at *3 (Cal. Ct. App. Dec. 15, 2009).

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101

Id. at *12. 102

847 N.Y.S.2d 905, 2007 WL 2409595, at *1 (N.Y. Sup. Ct. Aug. 24, 2007). 103

Id. at *5. 104

San Francisco v. Verizon S., Inc., 756 F. Supp. 2d 705, 712 (E.D. Va. 2010), aff’d 442 F. App’x 752 (4th

Cir. 2011). 105

Specht v. Google, Inc., 268 F.R.D. 596, 598 (N.D. Ill. 2010). 106

No. 1:07-cv-00026-OWW-TAG, 2008 U.S. Dist. LEXIS 116780 (E.D. Cal. 2008). 107

Id. at **3-9. 108

Id. at *9. 109

Id. at **10-11. 110

See, e.g., Halmos v. Ins. Co. of N. Am., No. 08-10084-CIV-BROWN, 2011 WL 1655597, at *2 (S.D. Fla.

May 2, 2011) (involving a claim that the attorney was tapping its witness on the foot in an effort to coach the

witness, and opposing counsel took pictures of the alleged foot-tapping). 111

186 Cal. App. 4th 1548, 1550 (2010). 112

Id. 113

Id. 114

CIV.A. 07-5653KSHPS, 2009 WL 2391282, at *1 (D.N.J. July 31, 2009). 115

Id. at **1–2. 116

Id. at *6. 117

Perry v. Leeke, 488 U.S. 272, 281, 109 S.Ct. 594, 600 (1989) (“when a defendant becomes a witness, he

has no constitutional right to consult with his lawyer while he is testifying. He has an absolute right to such

consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony interrupted in

order to give him the benefit of counsel’s advice”). 118

609 F.2d 1101, 1118 (5th Cir. 1980). 119

No. 10-C-3262, 2012 WL 3683397, *5 (C.D. Ill. Aug. 24, 2012). 120

No. 07-C-371, 2008 WL 1777222, *3 (E.D. Wis. Apr. 16, 2008). 121

No. 03 Civ. 1606LAKHBP, 2004 WL 2149118, *2 (S.D.N.Y. Sept. 23, 2004). 122

No. 03-C-9004, 2004 WL 406988 (N.D. Ill. Mar. 2, 2004). 123

200 F.R.D. 648, 650 (D. Colo. 2001). 124

182 F.R.D. 614, 621 (D. Nev. 1998). 125

No. 04-C-106, 2008 WL 5122339, * 23 (Fl. Cl. 2008). 126

657 F.2d 890, 902 (7th Cir. 1981). 127

275 F.R.D. 490, 491 (N.D. Ill.2011). 128

4 F.Supp.2d 1055, 1066 (M.D. Ala. 1998). 129

No. 93-C-6524, 1994 WL 327348, *1 (N.D. Ill. July 6, 1994). 130

150 F.R.D. 525, 528-529 (E.D.Pa. 1993). 131

Minebea Co., Ltd. v. Papsti, 374 F. Supp. 2d 231, 237 (D.D.C. 2005) (quoting United States v. Rhynes, 218

F. 3d 310, 320 (4th

Cir. 2000). 132

Christian v. Mattel, Inc., 286 F.3d 1118, 1129-31 (9th

Cir. 2002). 133

Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 245 (1st Cir. 2010).

134 Cooter & Gell v. Hartmarx Corp. 496 U.S. 384, 397 (1990).

135 The reasonable inquiry requirement imposes on counsel the duty to investigate the legal and factual basis

for a claim or defense before making it in writing. Coonts v. Potts, 316 F3d 745, 753 (8th Cir. 2003). The extent of

the inquiry depends on the circumstances which include the amount of time the attorney has to make the

investigation, the complexity of the matter, the party’s familiarity with the matter and the degree of access to

relevant information. CQ International Company v. Rochon International Inc., USA, 659 F3d 53, 62 (1st Cir. 2011).

136 Fed. R. Civ. P. 11(b)(1).

137 822 F.Supp 1053, 1057 (S.D.N.Y. 1993).

138 Eastway Const. Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985).

139 See generally: FEDERAL PRACTICE MANUAL FOR LEGAL AID ATTORNEYS, Chapter 4, Sanctions, Jeffrey S.

Gutman, 2013 Update for an excellent discussion of the issue. 140

Whitehead v. Food Max of Mississippi, 332 F.3d 796, 807 (5th

Cir. en banc), cert denied, 540 U.S. 1047

(2003). 141

FDIC v. MAXXAM, Inc., 523 F3d 566, 581 (5th

Cir. 2008). 142

Clark v. UPS, 460 F3d 1004, 1010 (8th

Cir. 2006).

Page | 73

143

ICU Medical, Inc. v. Alaris Medical Systems, Inc., 558 F.3d 1368, 1381 (Fed. Cir. 2009). 144

Raylon, LLC v. Complus Data Innovations, Inc., 700 F3d 1361, 1368 (Fed. Cir. 2012). 145

Fed. R. Civ. P. 11(b)(3); U.S. Bank National Association v. Sullivan-Moore, 406 F.3d 465, 469-70 (7th

Cir.

2005). 146

Divane v. Krull Electric Company, 200 F3d 1028 (7th

Cir. 1999) (quoting Brown v. Federation of State

Medical Boards of the U.S., 830 F.2d 1429, 1435 (7th

Cir. 1987)). 147

Fed. R. Civ. P. 11(b)(4). 148

Fed. R. Civ. P. 11(c)(1)(B); 1-10 Industry Associates, LLC v. United States, 528 F.3d 859, 867 (Fed. Cir.

2008). 149

Fed. R. Civ. P. 11(c)(1)(A). 150

Columbia Venture LLC v. Federal Emergency Management Agency, 562 F.3d 284, 287 (4th Cir. 2009).

151 See the Advisory Committee Note to Rule 11. See also Kinee v. Abraham Lincoln Fed. Sav. & Loan Ass’n,

365 F.Supp. 975 (E.D.Pa. 1973). 152

Francisco v. Verizon S., Inc., 756 F.Supp. 2d 705, 712 (E.D. Va. 2010), aff’d 442 F. App’x 752 (4th

Cir.

2011). 153

See Fed. R. Civ. P. 30(d)(3)(C) and 37(a)(5)(A). 154

See Fed. R. Civ. P. 30(d)(3)(C) and 37(a)(5)(B). 155

See Douglas J. Pepe, Persuading Courts to Impose Sanctions on Your Adversary, Litigation, Vol. 36,

Number 2, Winter 2010. 156

Oliveri v. Thompson, 803 F.2d 1273 (2d Cir. 1986). 157

See BDT Products, Inc. v. Lexmark International, Inc., 602 F.3d 742, 744 (6th

Cir. 2010); Claiborne v.

Wisdom, 414 F.3d 715, 724 (7th

Cir. 2005); Enmon v. Prospect Capital Corp., 675 F.3d 138, 147 (2d Cir. 1986). 158

United States v. International Brotherhood of Teamsters, 948 F.2d 1338, 1345-46 (2d Cir. 1991). 159

De Dios v. International Realty and Investments, 641 F.3d 1071, 1076 (9th

Cir. 2011). 160

Lee v. L.B Sales, Inc., 177 F.3d 714, 718 (8th

Cir. 1999) but see E.E.O.C. v. Great Steaks, Inc., 667 F.3d

510, 522 (4th

Cir. 2102) (subjective determination of bad faith required). 161

In re Wis. Steel Co., 48 B.R. 753 (N.D. Ill. 1985). 162

Steinle v. Warren, 765 F.2d 95 (7th

Cir. 1985). 163

United States v. Hudson, 24 L.Ed. 259 (1812). 164

Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980); see also Douglas J. Pepe, Persuading Courts to

Impose Sanctions on Your Adversary, Litigation, Vol. 36, Number 2, Winter 2010. 165

Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991). 166

Id. at 46. 167

See e.g., Stalley v. Mountain States Health Alliance, 644 F.3d 349, 352 (6th

Cir. 2011) (monetary sanction

can exceed the amount needed for deterrence). 168

Chambers, 501 U.S. at 45. 169

Id.; Ali v. Tolbert, 636 F.3d 622, 627 (D.C. Cir. 2011); see generally: Federal Practice Manual for Legal

Aid Attorneys, Chapter 4, Sanctions, Jeffrey S. Gutman, 2013 Update. 170

Litigation, Volume 36, Number 2, Winter 2010. 171

See Jean M. Cary, Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation, 25 Hofstra L.

Rev. 561, 563 (1996) (“In law offices across the country, the John Rambos of the legal world are invading

deposition rooms, yelling obscenities at opposing counsel, and attempting to mow down their ‘enemies’ with nasty

verbal invectives.”). 172

307 F.3d 1277 (11th

Cir. 2002). 173

Id. at 1282. 174

Id. 175

Id. at 1282-1283. 176

Id. at 1283. 177

Id. at 1284. 178

Id. 179

Id. at 1284-1285. 180

Id. at 1285. 181

Id. at 1285-1286. 182

Id. at 1293.