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A Day In The Trenches, Or, How Med Mal Defense Lawyers Behave At EBTs

Posted by Andrew J. Barovick | May 19, 2011 | 0 Comments

Yesterday, I witnessed a senior partner at a major medical malpractice defense firm act like a toddler.  In fact, he became, before my eyes, the neighborhood kid who becomes angry when he does poorly in the backyard football game, and takes his football home.

Let me set the scene. As is usually the case, I was outnumbered.  There were 3 defense lawyers, one of whom was defending his client, and me.  Things began inauspiciously enough. I asked the Dr.  the topic of the one article he had published in his career.  The Dr., who had been trained in gastroenterology, responded “parasites.” And a defense lawyer for one of the codefendants immediately rose to the occasion, displaying his wit by chuckling “like plaintiff's lawyers.”  Mind you, this fellow was also quite senior in the defense bar, until his firm dissolved, and he was taken in by one of the still-financially-healthy defense firms.  Of course, it may not have occurred to him that without plaintiff's lawyers bringing cases on behalf of plaintiffs, he would not have his job.

But on to the deposition.  It should have been a short one, and would have been, had the defense lawyer defending the subject of the deposition played by the rules.  Unfortunately, that was not to be. We came to a question that the defense lawyer found objectionable.  There's nothing wrong with raising the objection, and he did so. However, the lawyer then directed the witness not to answer my question, which was improper.  According to 22 NYCRR 221.2,

“A deponent shall answer all questions at a deposition, except:  (a) to preserve a privilege or right of confidentiality; (b) to enforce a limitation set forth in an order of a court; or (c) when the question in plainly improper and would, if answered, cause significant prejudice to any person…”

The defense lawyer's objection was, in essence, one based in a perceived lack of relevancy.  But even assuming the lack of relevancy of my question, the defense lawyer could not articulate how anyone would be prejudiced.  And in practice, I would be surprised if a lawyer ever could, since what is said at a deposition will often never come in as evidence at trial if the proper trial objection is made.

And frankly, the “new” rules (which became effective in 2008) were designed to put a halt to the practice of many less ethical lawyers, who would delay, obstruct and sometimes stop completely depositions that were in progress over minor issues that would ultimately be addressed at trial.

When it became clear that the defense lawyer wouldn't budge or engage in reasonable conversation, I called the assigned judge, and we consulted her for a ruling.  Here's where things get really good. The judge told the defense lawyer that his client had to answer my question, though in the same breath, suggested that it was not an entirely relevant question.  Instead of allowing that to put an end to the matter, the defense lawyer told the judge that he would not abide by her decision, and would instead “put in on papers.”  He indignantly claimed that all medical malpractice litigation would be negatively affected if he allowed my question to be answered, and continued to block it.

So after about half an hour of arguing over the telephone before the judge, and awaiting her decision, the defense lawyer rejected it when it was not favorable to him.  In the process, he kept his client in the deposition for an extra half hour, wasted my time and that of the counsels for the codefendants, and did so knowing that he was wrong on the law.  But I'll bet he gets some great billing out of it.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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