In transcripts of various depositions examining the plaintiffs’ four experts, then-Kline & Specter attorney Thomas Bosworth “alternated between being rude, demeaning and obnoxious,” U.S. District Judge Stephanie L. Haines said in her Wednesday opinion, highlighting Bosworth’s use of a “higher-pitched, mocking tone to belittle the female defense counsel.”

Combined, the four depositions lasted a bit under 28 hours, according to calculations presented by the Nelson Mullins legal team, which together amounted to $19,713.50 in fees, the amount of monetary sanctions handed down on Wednesday.

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1726333?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2023-09-28&read_main=1&nlsidx=1&nlaidx=12?copied=1

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This wholesale ban on personal attendance of Defendant’s counsel at
depositions of its own employees and witnesses presented the constitutional issue
Defendant asserts in this appeal and was not supported by existing law, emergency
orders, or evidence. The trial court’s order violated Defendant’s constitutional right
by prohibiting counsel from being physically present at depositions of its own
employees and witnesses. We reverse and remand for further proceedings.

A link to the opinion is here.

Using technology, courts have tried to conduct business as usual during the pandemic but there are some things – like trials – that are difficult to conduct remotely. For the sake of judicial economy and moving cases forward, lawyers and judges have used remote appearances to accommodate one another safely in the pandemic. But there is a point at which remote participation falls short. The North Carolina court reasons that the right to sit with your counsel is one of those points where technology falls short.

Things happen during depositions. They aren’t scripted and it is difficult sometimes to determine when significant issues requiring personal appearance together will arise. Personal and physical contact between counsel and client – particularly during testimony –  can be essential and shouldn’t be governed by a blanket order prohibiting all personal appearances together.

On the other hand, having represented and sued many hospitals over the years, I would like to point out that the court should also be clear about not allowing any party or their counsel to use the pandemic to unreasonably delay proceedings. In my experience, this appeal by the hospital lawyers is exactly the kind of thing defendants love to use to obstruct and delay the progress of a case – particularly, a very meritorious one.

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In 2013, Florida’s legislature set out on its latest mission to block victims of medical error from ever reaching court. The spider web of rules passed in the late ’80’s was apparently insufficient to satisfy their paymasters in locking these citizens out of the Courthouse. In addition to the old rules that require these victims to prove their cases BEFORE they are filed (without subpoena power to talk to physicians and nurses), Florida added new rules to punish these victims before their cases are even filed. As decided last week by the Florida Supreme Court in Weaver v. Myers, these rules violate patients’ rights to privacy.

Under the new rules, opposing lawyers could force meetings with the victims doctors or meet with them without the victims knowledge. The Legislature’s stated purpose for allowing – to facilitate settlement – these tactics was laughably false. The real purpose of the meetings was to pre-defend the case by turning the victims doctors against them – when the insurance carrier got into their offices through skilled counsel to change the evidence.

Getting access and asserting some degree of control over witnesses is key to success. It’s not a polite thing to say – but in the hostile environment where these cases get litigated, you need to dominate in order to win.

My Father started the deposition of a Defendant by skipping the formalities (no name or address) and just asking right out the gate, “Doctor, when was it you decided to kill my client?”. Papers flew and screams filled the office suite as lawyers set themselves on fire. The deposition was, of course, discontinued so the lawyers could scramble over to the Broward County Courthouse shouting threats and recriminations at one another. Judge Futch quickly sent them back to continue. Instead of the crisp and well prepared witness that started the deposition, the Doctor was now sweating and his tie was loose and askew. It ended up going down very differently than what the Defendant Doctor and his lawyer had planned.

This isn’t to say I’ve tried this at home. It takes a special talent to do it properly, without screwing up your duties and reputation. I’m just trying to make a point – access to witnesses is key and can be used to win. The Florida Supreme Court was right  to invalidate the horrible rules that allowed insurance carriers to secretly violate patient privacy by intimidating their doctors.

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Ernest Hemingway

When I walked into my first job as a lawyer, Charles Morehead gave me some of the best advice I ever got. The Firm was a competitive shark tank teeming with talented predators – so these kinds of crumbs from my new colleagues were valuable. I hoarded them.

“Quit using your mouth,” he said. “Use your ears. Everyone thinks taking a deposition means talking. It doesn’t. It means listening. Listen to what the witness is saying. Really listen. Get behind what they’re saying – to what they mean. Then ask yourself – why are they trying to say that.”

This isn’t the kind of listening described in self help books. It isn’t designed to make people feel better[i]. This is professional listening. In my case, it is designed to unearth small truths that help jurors understand a larger truth (that results in something tangible – a Verdict – an English word with a Latin root, verdictum).

I was in New Orleans once, deposing an expert witness at Tulane University. He was a medical doctor specializing in psychiatry, hired by a health care provider my client was suing. I’ve long forgotten which case or what the issue was but I do remember thinking at the time that I was hearing an unreasonable level of stubbornness. Rather than fight him, I led him with some slack – like a fish – just to see how far out he was willing to go before he got tired. The hour grew late, people got aggravated and flights got missed. Still, I hadn’t asked a hard question. I’d just been letting him drift through the universe of his stubborn opinion.

My Father once told me, “I’ve asked a witness a hundred questions to get the answer to one.”

So when it got late and it looked like this Tulane shrink couldn’t stand it anymore, I asked a tough question. That was when he threatened to have me committed involuntarily to his institution for psychiatric evaluation. They have Napoleonic Code there in Louisiana – I couldn’t even begin to imagine the ins and outs of how that might work. The look on his face when he’d finished his rant was priceless. He’d gone too far and everyone in the room knew it – including him. I made sure we had it on the record and wrapped up.

You gotta learn to listen, listen to learn / You gotta learn to listen, before you get burned / Learn to listen, listen to learn / You gotta learn to listen, before you get burned

The Ramones, Learn to Listen

A few minutes later, I was enjoying turtle soup at Antoine’s in the French Quarter. Thinking about how to use crazy talk in an expert deposition to help my client.

[i] In “Tell Me More, On The Fine Art of Listening”, Brenda Ueland describes an “alternating current” that “recharges us so that we never get tired of each other.”

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