The above video is reportedly of Joe Jamail taking a deposition in Texas in Paramount Communications Inc. v. QVC Network Inc., a case before the Delaware Court of Chancery. By any standard, the attorney conduct in this deposition is outrageous.
As a California business litigation attorney, I've seen my share of aggressive conduct. While this video demonstrates extreme conduct in Texas, the California state and federal courts have clear guidelines for professional conduct during the course of litigation and throughout trial. Many instances of unprofessional conduct are in fact sanctionable by a court. Attorneys can be subject to monetary fines, penalties adverse to the client's case, as well as ethical inquiries.
The Delaware Supreme Court stated in Paramount Communications Inc. v. QVC Network Inc. concerning the attorney conduct during the case, a portion seen in the video above:
"The issue of discovery abuse, including lack of civility and professional misconduct during depositions, is a matter of considerable concern to Delaware courts and courts around the nation. One particular instance of misconduct during a deposition in this case demonstrates such an astonishing lack of professionalism and civility that it is worthy of special note here as a lesson for the future -- a lesson of conduct not to be tolerated or repeated."
See Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34, 54 (Del. 1994)
Wikipedia entry for Joe Jamail:
"Joseph Dahr Jamail, Jr. (born October 19, 1925) is a Lebanese American attorney and billionaire. The wealthiest practicing attorney in America, he is frequently referred to as the King of Torts. As of 2011, his net worth was estimated by Forbes to be $1.5 billion, making him the 833rd richest person in the world."
Wikipedia's entry for Joe Jamail continues:
"Jamail is known for his passionate, aggressive, sometimes abrasive advocacy on behalf of his clients -- a tendency that has been noted in the National Law Journal, by the Supreme Court of Delaware[as well as other sources. On its own motion, having reviewed deposition transcripts in the Paramount case, the Delaware Supreme Court referred to Mr. Jamail's conduct as "rude, uncivil and vulgar," "abusing the privilege of representing a witness in a Delaware proceeding," 637 A.2d. 34, at 53, as displaying "an astonishing lack of professionalism and civility," and as "outrageous" and as "unacceptable," for statements to deposing counsel such as "you could gag a maggot off a meat wagon." 637 A2d. 34, at 54. The Court included its admonition of Mr. Jamail in an Addendum to its opinion "as a lesson for the future - a lesson of conduct not to be tolerated or repeated." 637 A2d. 34, at 52."
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure require attorneys to conduct depositions with professionalism and civility.
Rule 30 Depositions By Oral Examination
(c)(1) Examination and Cross-Examination
The examination and cross examination of a deponent proceed as they would at trial under the Federal Rules of Evidence.
An objection must be stated concisely in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
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.
Central District of California Civility and Professional Guidelines
The Central District of California has gone so far as to impose civility and professional guidelines to prevent abusive and obstinate behavior by and between lawyers to promote fairness and justice as opposed to the win at all-cost attitude that pervades the legal profession. Excerpts from the Central District of California guidelines are below:
• We will not engage in any conduct during a deposition that would be inappropriate in the presence of a judge.
• During depositions we will ask only those questions we reasonably believe are necessary for the prosecution or defense of an action. We will not inquire into a deponent's personal affairs or question a deponent's integrity where such inquiry is irrelevant to the subject matter of the deposition. We will refrain from repetitive or argumentative questions or those asked solely for purposes of harassment.
• When defending a deposition, we will limit objections to those that are well founded and necessary to protect our client's interests. We recognize that most objections are preserved and need be interposed only when the form of a question is defective or privileged information is sought.
• When a question is pending, we will not, through objections or otherwise, coach the deponent or suggest answers.
• We will not direct a deponent to refuse to answer questions unless they seek privileged information or are manifestly irrelevant or calculated to harass.
California Code of Civil Procedure
The California code addresses appropriate conduct by attorneys in deposition as stated in relevant part below:
§ 2023.010 Conduct Subject to Sanctions
Misuses of the discovery process include, but are not limited to, the following:
(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.
(d) & (f) evasive or non-responsive
(e) unmeritorious objection to discovery
(i) failing to confer..in a reasonable and good faith attempt to resolve informally any dispute concerning discovery.
California Ethics and Civility Rules in Court
-Avoid repetitive or argumentative questions
-Should avoid...improper coaching of a deponent or suggesting answers
See Tucker v. Pacific Bell Mobile Services, (2010), 186 Cal.App.4th 1548 (Monetary sanctions for attorney coaching witness at deposition),
See Leko v. Cornerstone Bldg, Inspec. Serv., (2001) 86 Cal.App.4th 1109 (Using discovery in a manner that causes unwarranted annoyance or undue expense)
San Francisco business litigation lawyer Matthew L. Kabak, principal and managing attorney of the Kabak Law Group, has been successfully representing California corporations, LLCs, partnerships and other entrepreneurs in complex business disputes throughout SF, Alameda, San Mateo and Santa Clara Counties since 2001. He advises and represents companies and individuals in commercial litigation and arbitration proceedings arising from business disputes, contracts, transactions, real estate and IP.