I. Testifying Falsely in Deposition
Clients invariably innocently or intentionally shade the truth. 1Illustrations in personal injury litigation:Case 1—Auto negligence case arising from a valet parker driving into a person standing at the door. At deposition, defendant driver denies having any vision impairment. Driver’s medical records revealed driver to have bilateral inoperable cataracts causing driver to be legally blind. Favorably settled for plaintiff just prior to hearing on motion for sanctions.Case 2—Auto negligence case in which plaintiff denies ever sustaining a prior similar injury. Discovery reveals an earlier accident involving injury to the same part of the body. Dynamics of prior injury are dissimilar enough to avoid dismissal of the case, but monetary sanctions entered against plaintiff for testifying falsely. If done with a fraudulent intent, upon discovery, the lawyer should withdraw from representation. 2See Model Rule of Professional Conduct 1.2 (stating that a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent); Model Rule 3.3 cmt. [12] (recognizing that lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so); Model Rule 1.16 (requiring that a lawyer withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct or other law). More often, the disconnect with reality comes when the client either forgets salient details, does not try hard enough to remember important facts, or makes the decision that certain facts are irrelevant and so omits them. Regardless of the motive, once the full truth is discovered by the other side, a motion for sanctions for perpetuation of a fraud on the court is sure to follow. 3A trial court has the inherent authority to dismiss a plaintiff’s entire case when there is clear and convincing evidence that the plaintiff has committed “a fraud on the court which permeates the entire proceedings.” See McKnight v. Evancheck, 907 So. 2d 699, 700 (Fla. 4th DCA 2005). (Even worse, the opposing party may wait until trial to impeach, the effect of which may be an adverse decision.)
How then to avoid your client going down this road to disaster? No matter how much the client may protest, just assume the full facts have not been provided. Explain to the client that even an innocent lapse of memory can appear as if the client is deliberately obscuring the truth. Implore the client to check their records, talk to their friends and family for help in recollection and to think long and hard.
More importantly, do your own investigation of your own client and their background. 4See Model Rule 3.4 (stating that a lawyer shall not in pretrial procedure, fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party). Further, Federal Rule of Civil Procedure 26(g) expressly imposes upon counsel the duty to conduct a reasonable inquiry in responding to discovery. Google your clients. Review their social media postings, such as Facebook. 5It is important to note that discovery of social media is now widely accepted in courts throughout the country and lawyers must be conscious of their clients’ social media and information contained therein, including photographs and video. See, e.g., Davenport v. State Farm Mutual Automobile Insurance Co. , 2012 BL 45831 (M.D. Fla. 2012). Check court indexes to see if there have been other legal filings involving your clients. In personal injury matters, obtain past and present medical records and review their histories. Speak directly with spouses and family members. Do a public records check to verify criminal records and traffic infractions.
Knowing the full history allows you to refresh your client’s recollection ensuring a complete answer in discovery and in trial.
Since even the most forthcoming client can forget a material fact, whenever possible, qualify the answer stating that it is based on current recollection subject to amendment should additional information be recalled.
As credibility of the client is of paramount importance, this extra due diligence of investigating one’s own client is critical. 6This is a primary function and application of a lawyer’s duty to competently represent a client. See Model 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.”).
II. Failure to Timely Respond
To Written Discovery
While hard to fathom, some lawyers neglect to have a workable posting system to make sure time-sensitive discovery answers and objections are complied with. 7It is part of a lawyer’s duty to diligently represent the client to make sure the case is prosecuted expeditiously. See Model Rule 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”).
Typically, under applicable state or federal rules of civil procedure, responses to interrogatories, requests for production, requests for admissions and requests for examination of the person must be responded to within 30 days of service (add additional days if mailed or emailed). 8See Fed. R. Civ. P. 33 (Interrogatories); Fed. R. Civ. P. 34 (Production of Documents); Fed. R. Civ. P. 36 (Requests for Admissions).
Even if the response cannot be fully completed, objections must be timely served or else the objection may be deemed waived. 9See Southern District of Florida Discovery Handbook, Appendix, at 89 (2011) (“When objections are untimely made, they are waived.”); see also American Funding Ltd. v. Hill, 402 So. 2d 1369 (Fla. 1st DCA 1981) (noting that untimely objections are waived).
Upon receipt of the request of the written discovery from opposing counsel, the deadline date in which to respond must be recorded in the lawyer’s calendar to be monitored by the lawyer. (The lawyer’s assistant should also monitor the calendar but this is too important to entrust to the assistant alone.) 10The rules of professional conduct are clear that it is the lawyer’s duty to supervise nonlawyer personnel. See Model Rule 5.3.
As a safeguard, an additional posting should occur five days before the deadline as a further reminder.
If the lawyer cannot timely respond for whatever reason, a motion for extension of time with good cause must be filed before the expiration of the deadline in order to preserve not only objections but to prevent a plaintiff from being in violation of the rules of civil procedure. 11It is best to fully respond prior to the court entering an order on the motion for extension of time. A failure to comply with the court’s order can be grounds for sanctions. Further, should a request for admissions not be timely responded to, the requests may be deemed to be admitted with potential catastrophic results as to the merits of the case. See Fed. R. Civ. P. 36; see also Fla. R. Civ. P. 1.370.
Failure to adhere to this simple plan will result in a motion to compel along with a motion for sanctions for the time spent in preparing the motion to compel, noticing it for hearing as well as attendance at a hearing. 12See Fed. R. Civ. P. 37 (If the motion to compel is granted the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.); see also Fla. R. Civ. P. 1.380 (same).
Severe sanctions may be entered should two or more court orders compelling the discovery be entered. 13See Fed. R. Civ. P. 37 (providing for severe sanctions for violation of a discovery order); see also Fla. R. Civ. P. 1.380 (same). The court may indeed enter sanctions such as striking of a party’s pleadings in whole or in part. This is especially so should the court find the party itself is to blame for the noncompliance. 14Deliberate and contumacious disregard of court’s authority justifies application of severe sanction of striking pleadings or entering default for noncompliance with discovery order, as will bad faith, willful disregard or gross indifference to order of the court, or conduct which evinces deliberate callousness. Mercer v. Rainey, 443 So. 2d 944, 946 (Fla. 1984).
Illustrations:
Slip and fall case—Defendant fails to produce specifics as to prior similar accidents despite three court orders. The court finds that information was available but not produced because of desire for delay. The court orders sanction of entry of default on liability against defendant.
Auto negligence—Plaintiff fails to respond to request for admissions that plaintiff’s vehicle had available and operational seat belts. Six months after a response was due, the plaintiff seeks leave to serve a response of denial. The court finds delay without excusable neglect and deems the request for admissions as admitted.
III. Spoliation of Evidence
The lawyer must be on guard from the beginning to advise the client to preserve any evidence that may be relevant to the claim or any defenses. 15A party has an obligation to retain relevant documents, including emails, once litigation is reasonably anticipated. Point Blank Solutions Inc. v. Toyobo America Inc., 2011 BL 332802, at *11 (S.D. Fla. 2011).
If the client loses or destroys evidence once it becomes reasonably apparent that a claim may or is being brought, the sanctions are swift and potentially severe. The type of sanctions depends on the importance of the evidence as well as circumstances surrounding its loss. 16“[T]he party seeking [spoliation] sanctions must prove … first, that the missing evidence existed at one time; second, that the alleged spoliator had a duty to preserve the evidence; and third, that the evidence was crucial to the movant being able to prove its prima facie case or defense.” Id. at *10.
The rationale for the imposition of sanctions for the spoliation of evidence is to redress and remedy abuse of the judicial process. 17Pension Committee of the University. of Montreal Pension Plan v. Banc of America Securities LLC, 685 F. Supp.2d 456, 465–66 (S.D.N.Y. 2011).
Illustration:
Motorcycle Auto Negligence—Defendant’s insurer, while suit is pending, allows its insured’s motorcycle to be salvaged and destroyed. Accident reconstructionist for both the plaintiff and insured needs the actual motorcycle to accurately reconstruct how the accident took place. Subsequently, the court finds that insurer violated its duty to its insured to provide an adequate defense by despoiling motorcycle. The insurer became responsible for payment of extra contractual damages to plaintiff.
IV. Changing Records
The only thing worse than a client who alters records is the lawyer who enables it. 18See Hogan v. Dollar Rent a Car System Inc., 783 So. 2d 1211 (Fla. 4th DCA 2001).
Illustration:
The doctor dictates all of his office notes and decides he can just destroy the incriminating note and redictates new ones. To a trained eye, the new note looks too good to be true. Discovery into the dictation and transcription equipment reveals the note was dictated long after the visit occurred with the inference that it was a phony note.
The hospital nurse’s notes contain self serving entries. Upon close examination under a microscope, a different pen was shown to be utilized to add words in convenient places. Clearly the note was doctored.
A far too common example is the medical doctor who decides to rewrite the records of an office visit to cover up the incriminating patient’s history or symptoms. 19Alteration of medical records is a crime. Jimenez v. Department of Professional Regulation, 556 So. 2d 1219, 1220 (Fla. 4th DCA 1990). The lawyer should be alert that this behavior occurs even in the new world of electronic records. Through the use of forensic document examiners, infrared photography, Electrostatic Detection Apparatus (ESDA) exams and computer analysis, the changes in records can be detected and the sanctions that flow from this conduct are severe. Worse, the trier of fact will become inflamed against the health care providers for what is really a form of fraud.
The sanctions that flow range from entry of a default or dismissal to monetary ones. The offender’s lawyer should preemptively be on guard for this and nip it in the bud should it occur.
V. Communicating Directly
With the Opposing Party
Lawyers know that it is improper to have direct communications with a party outside the presence of that party’s lawyer. 20See Model Rule 4.2 (stating that in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter). The line gets crossed when the lawyer forgets that this same prohibition applies to current employees of the adverse party. Engaging in such ex parte communication may lead to severe sanctions including the disqualification of the lawyer. 21Disqualification may result from violation of the anti-contact rule. Allstate Insurance Co. v. Bowne, 817 So. 2d 994 (Fla. 4th DCA 2002). An exception to this rule is communication with a past employee who was not in a managerial position in the area involved in the litigation. 22Id. (noting that counsel can speak with former employees of opposing party).
VI. Obstructive Behavior at Deposition
Depositions are not akin to hand to hand combat. Common courtesy dictates that lawyers must be courteous to the witness as well as to each other, yet some lawyers think they can control the testimony of the witness through objections that include a clue to the witness as to how to answer. 23See Southern District of Florida Discovery Handbook, Appendix, at 91 (2011) (“Counsel should not attempt to prompt answers by the use of ‘suggestive,’ ‘argumentative,’ or ‘speaking’ objections; off the record conferences between counsel and witness are inappropriate; instructions not to answer are limited; and witnesses should be treated with courtesy.”).
The manipulation may be a seemingly innocuous comment to the witness “to answer if you know” or “don’t guess.” Often this is a clue to the witness to say he or she doesn’t know or can’t remember.
This type of conduct has no place in a deposition. It is nothing more than a form of obstructing discovery where a witness is influenced by an objection in giving testimony. 24See Hall v. Clifton, 150 F.R.D. 525 (E.D. Pa. 1993) (prohibiting speaking objections through an order governing depositions).
Should the conduct be brought before a knowledgeable and experienced judge, sanctions 25See Wilson v. Sundstrand Corp., No. 99-6944 (N.D. Ill. Aug. 25, 2003) (sanctioning attorneys for speaking objections during a deposition). may include the adverse inference of the contested facts as well as monetary sanctions.
Illustrations: 26 See Florida Conference of Circuit Court Judges, 2010 Handbook on Discovery Practice, at 55 (2010).
“I object. This witness could not possibly know the answer to that. He wasn’t there.”
“I object. You can answer if you remember.”
“I object. This case involves a totally different set of circumstances, with different vehicles, different speeds, different times of day, etc.”
VII. Abuse of Process
While there are many causes of action, it does not seem that each one applies to every case. For example, asserting a claim for battery in a case that where, at most, a negligent touching occurred is nothing more than an abuse of process. The issuance of subpoenas on witnesses who clearly have no knowledge of any facts or substantially discoverable facts is likewise an abuse of process. This type of conduct is nothing more than bullying and will subject the lawyer to sanctions including being referred for Bar discipline. 27See Model Rule 3.4 (stating that a lawyer shall not in pretrial procedure, make a frivolous discovery request); Model Rule 8.4 (indicating that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice).
VIII. Asserting a Nonjusticiable
Issue of Law or Fact
The hasty overpleading of causes of action or defenses to create issues or pleading a cause of action which in no way could be supported by the applicable facts are akin to a frivolous pleading. 28See Model Rule 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”). Likewise, asserting a defense such as denying a defendant’s corporate existence or ownership of the property in question when these are obviously true is likewise frivolous. When brought to the court’s attention, monetary sanctions for the work done in exposing the assertion of a nonjusticiable issue of law or fact will surely be assessed. 29Federal Courts routinely sanction parties and counsel for asserting frivolous claims and defenses through Rule 11. Fed. R. Civ. P. 11. Florida Courts also similarly sanction parties and counsel for frivolous claims and defenses pursuant to Fla. Stat. §57.105 (2011).
IX. Late Disclosure of Witnesses
The identity of both lay and expert witnesses must be timely furnished to opposing counsel. Multiple opportunities for such disclosure exist including answers to interrogatories and expert witness interrogatories and pretrial witness lists. 30See Fed. R. Civ. P. 26 (discussing mandatory witness and expert witness disclosures). Whether by design or inadvertence, a late disclosure of a witness can result in the sanction of rendering the witness’s testimony inadmissible at trial. 31See Fed. R. Civ. P 37(c) (“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”). This is especially so if the late disclosure prejudices the opposing party. To avoid the striking of a witness, care should be taken to make timely disclosure.
X. Unprofessional Conduct
Toward Opposing Counsel and the Court
Rambo-like and discourteous tactics are no longer tolerated by courts. Examples of the unprofessional conduct include failing to communicate with opposing counsel prior to scheduling matters to obtain mutually convenient times and cooperating with opposing counsel when conflicts on scheduling occur 32See Southern District of Florida Discovery Handbook, Appendix, at 87 (2011) (“Discovery in this District is normally practiced with a spirit of cooperation and civility. Local lawyers and the Court are proud of the courteous practice that has been traditional in the Southern District. Courtesy suggests that a telephone call is appropriate before taking action that might be avoided by agreement of counsel…. A lawyer shall normally attempt to accommodate the calendars of opposing lawyers in scheduling discovery.”).; not agreeing to reasonable requests for extensions of time to respond to deadlines, objecting to discovery requests when no good grounds for the objection exist; 33See Fed. R. Civ. P. 26(g) (stating that attorney’s signature on discovery papers certifies that objections to discovery are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law). not providing opposing counsel with proposed orders prior to submitting the order to the court; not asserting personal knowledge of matters in trial; 34At trial, a lawyer shall not state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant. Model Rule 3.4. currying favors with a juror; and other various types of unprofessional behavior. A violation of professional conduct when brought to the attention of the court should result in a warning for the first such violation with sanctions including monetary penalties and even a declaration of a mistrial 35Improper closing argument by an attorney can result in a mistrial. George v. Mann, 622 So. 2d 151 (Fla. 3d DCA 1993). for continuing or more severe misconduct.
