Leveling the Playing Field (Continued from page 6)


class]...”[Defense counsel] “Just


as you’re having difficulty today remembering your previous legal cases in which you were excluded from testifying in, correct?”


882-83 [to witness] “And your ability to recall the prior cases in which you’ve been excluded from testi- fying in, do you find that hinders your ability to function normally in today’s society?”


888 [responding to witness’ offer to make him a more legible copy of an exhibit] “For some reason I just cannot take your word for it.”


In addition, United States Magistrate


Judge Grimm criticized Defendant counsel’s antagonistic and hostile com- ments which Defendant’s counsel made to Plaintiff’s counsel and the expert wit- ness:


Examples of Antagonistic and Hostile Comments by Defense Counsel during 1/18/00 Deposition:


Page Comment 635 [to witness] “You’re going to get three strikes and you’re out today...No games today.”


636 [to witness] “Well, your time is out in this case.”


667 [to witness] I’m not being hostile...you’re reverting to your old self.”


716 [ to Plaintiff ’s counsel] “Don’t lecture me... Don’t even think about it. ...Don’t even dream about it.”


772 [to witness] “You’re not going to obstruct this deposition any more than you have...”


786 [Defense counsel] “Say no then.” [Plaintiff ’s counsel] “She did.” [Defense counsel] “She said the long-winded version, which she loves to do, and which got her into trouble before.”


787 [to witness] “And incidentally, who’s paying your bills today, or are you eating the costs? Are you getting paid today for your testi- mony?” [Witness]: “Yes, are you?” [Defense counsel referring to Plaintiff ’s counsel] “He’s paying me, thanks to you. See how it works?”


798 [asked not to raise his voice by Plaintiff ’s counsel] “I’m not rais- ing my voice. I think she has a problem hearing now... This is the


8


hearing tactic I didn’t mention before... I didn’t think your ears were that bad.”


834 [Witness]: “I would like to read the question on the question- naire, an exhibit] into the record. If you—“


[Defense counsel]: “No, you’re not. I’m running this deposition.”


853 [to witness] “Just answer the question. Let’s start anew for once. I’m tired of your old an- swers which don’t answer the questions.”


857 [to witness] “I’m not going to play semantic games with you, as you constantly are trying to do here.”


884 [responding to witness’ offer to get him some test data] “Get it to me tomorrow. Stop wasting my time now.”


892 Plaintiff ’s counsel: “Mr. Gladstone, keep your voice down.” Defense counsel: “Quiet.


asking the questions, I resent the interruption.”


Magistrate Judge Grimm was also criti-


cal of Defendant’s counsel for his sarcastic comments made throughout the deposi- tion.


Examples of Sarcastic Comments by


Defense Counsel during 1/18/00 Depo- sition:


Page Comment 695 [Plaintiff ’s counsel] “Mr. Gladstone, not necessary. She’s answered your question.” Defense counsel: “Which comes first the chicken or the egg, Mr. Erwin?”


741 [responding to the witness’ an- swer] “Yeah, right.”


744 “She [referring to witness] always has to hedge, doesn’t she, Mr. Erwin. You always have to cover yourself; nothing’s ever a straight answer.”


749 [to witness] “I appreciate the le- gal objection, Dr. Ziem, it seems like you know more than you’ve pretended to know all along about your legal knowledge . . . . I’m curious, are you going to instruct yourself not to answer certain questions today?”


776 [Witness] “They’re all related to reactive airway disease and how it’s produced.” [Defense Counsel] “Sure, they are.”


Trial Reporter I’m


[Plaintiffs’ Counsel] “We don’t need sarcastic comments.” [Defense Counsel] “I’m not be- ing sarcastic. I’m totally believing everything your witness says, and I’m taking everything she says on face value, unchallenged. You know, I’m the naive attorney you’ve always dreamed of.”


790 [Defense Counsel] “Can you please read the question again. I don’t think she answered it, as usual.” [Plaintiffs’ Counsel] “Objection. Save the speeches.” [Defense Counsel] “Objection.” [Plaintiffs’ Counsel] “Save the sar- casm.” [Defense Counsel] “Yeah, yeah, yeah.”


805 [after suggestion by Defense counsel that witness was not tell- ing the truth, the witness insisted she was. Defense counsel replied:] “Gee, you know, I’m convinced.”


814 [responding to witness saying she does not understand the ques- tion]: “Should I be surprised?”


821 [Defense counsel, to witness] “…you’re paying me for my time.” Witness: “A disabled pa- tient is paying you for your time.” Defense counsel: “Should I feel sorry?”


824 [to witness, who sought clarifica- tion of a question] “What do you think? Are you playing that game again?”


847 [to Plaintiff ’s counsel] “It cer- tainly makes it easier, doesn’t it . . . when she answers the questions appropriately the first time. This is a first.”


870 [to witness following an answer to a question] “Back to game play- ing, huh?”


883 [responding to witness’s reference to her credentials in her CV] “Am I supposed to be impressed?”


893 [responding to witness’ request to clarify a question asked] “What do you think I mean? Do you think I’m talking about foods she ate ten years ago as a kid?”


The threatening comments which Defendant’s counsel made to the depo- nent and Plaintiff’s counsel which the Court found violative of the Local Rule and Discovery Guideline were as follows: Examples of Threatening Comments


by Defense Counsel during 1/18/00 Deposition


Winter 2001


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