U.S. Magistrate Judge Peggy Leen Makes A Sanctions Order Sizzle
I have a lot of respect for federal magistrate judges. They spend their days handling settlement conferences, ruling on motions, and presiding over discovery disputes. Every once in a while, if they are lucky, the parties to a case will consent to a trial before a magistrate to liven things up.
Nothing sucks more than civil discovery disputes. Particularly those that involve deposition misconduct in the form of speaking objections, and motion papers inclusive of personal attacks. Here is the greatest court order I have ever seen (ABA Journal via ATL).
Judge Leen apparently got to this ruling too late to affect discovery in the case, but she's not exactly apologetic about it. As she explains: "I am not the Maytag repairman of federal judges desperately hoping for something to do." She thought so little of the merits of this dispute and the number of trees killed in its pursuit that she assigned her intern to read the 185 pages of transcripts submitted by the parties and to submit a memorandum. The intern was very quickly able to determine what the lawyers should have known- they were being bad.
Judge Leen isn't exactly happy about the conduct, and describes how she would handle it in a perfect world.
JUDGE LEEN:
If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:
I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am
an experienced lawyer and know that objections must be concise, non- argumentative and
non-suggestive. I understand that the purpose of a deposition is to find out what the witness
thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the
witness’s own words to form a legally convenient record. I know I am prohibited from
frustrating or impeding the fair examination of a deponent during the deposition. I know
that constant objections and unnecessary remarks are unwarranted and frustrate opposing
counsel’s right to fair examination. I know that speaking objections such as “if you
remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you
understand the question” are designed to coach the witness and are improper. I also know
that counsel’s interjection that he or she does not understand the question is not a proper
objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.
ME AGAIN: You go, Judge Leen! Just the right mix of sarcasm, ridicule and contempt. But tastefully done. She has the street cred to back it up, too, since she is the only female Nevada lawyer to be elected to the International Society of Barristers, the International Academy of Trial Lawyers, and the American College of Trial Lawyers (see page 9).
I will never be a federal judge. I lack judicial temperament. I would have wanted to do something more to these lawyers than reprimand them in an order. But I suspect they will not do this kind of thing again in federal court.
