X
August 2017 - Coffee Break

by Richard W. Millar, Jr.

I like coffee. In truth, maybe I should substitute “need” for “like.” Growing up, I vaguely remember my parents drinking coffee at breakfast but it did not interest or intrigue me.

Until I went to boarding school. (As an aside, my mother was a firm believer that, at most, parents should tolerate teen-age children only during summer vacation, which was why God invented prep or boarding schools. I was given a “choice” of several well-known prep schools that I had never seen, but whose common feature was that they all were approximately 3,000 miles from home. (In those days, that distance translated into an interminable flight in a DC-6 or Lockheed Constellation with three stops between Los Angeles and New York followed by a several hour train ride to western Massachusetts, ensuring no quick surprise visits home.)

From the perspective of a California native, the prep school season consisted of about twenty minutes of fall when the leaves turned color and fell from the trees, followed by what seemed like a year of freezing winter, and then about twenty minutes of spring before leaving for home.

Hence, coffee. In the dining room, when I wasn’t waiting on tables, I learned about the “boarding house reach” and coffee. For better or worse, coffee has become a lifetime habit.

I often drink coffee during depositions, whether taking or defending them. It keeps me from sleeping face-down on the table or running from the room screaming.

But, unlike some, I just drink coffee. I don’t throw it.

It used to be a joke that you knew it was going to be a bad day when the crew of 60 Minutes showed up on your doorstep. The legal equivalent may be when an opinion in your case starts: “The events underlying this dispute were featured in a National Law Journal article entitled ‘Lawyers Behaving Badly 2016: Deposition Edition.’”

Victoria Healy and Thomas Wallerstein were, according to a United States District Judge, adversarial lawyers with “a notably combative relationship. . . . Their discovery disputes have swamped the docket,” and their deposition transcripts include “contentious and cringe-worthy exchanges on the record.”

The deposition, which, apparently, got them in the Behaving Badly Hall of Fame, was the deposition of one Roberto Pieraccini taken by Mr. Wallerstein and defended by Ms. Healy.

As the court put it, “Proceedings had been underway for less than an hour before things completely unraveled.”

After some back and forth, Ms. Healy accused Mr. Wallerstein of “insulting us,” to which Mr. Wallerstein replied: “Sir, I think you should take five and think about it.” Ms. Healy then said: “No. I think you should take a f*****g break. You should . . . .”

And that is when the reporter inserted the ubiquitous and wonderful phrase: “(Interruption in proceedings.)” Then:

“Mr. Wallerstein: Oh, my goodness.

Ms. Healy: Take a f*****g break.

Mr. Wallerstein: I need help. She just threw coffee at me. She’s going crazy . . . .”

The inevitable motion for sanctions followed. While Ms. Healy maintained that she didn’t throw coffee at Mr. Wallerstein and that she had simply slammed her cup on the table, her attorney allowed as how—and this is wonderful all by itself—she “did not maintain control of the cup.” However, “three eyewitnesses agree (i.e., everyone except Healy) that Healy used expletives, then threw a cup of coffee in Wallerstein’s direction, splattering its contents on his clothes and belongings.”

Rather than apologizing, Ms. Healy, in opposition, went on the offensive, calling the motion “outrageous” and blaming Mr. Wallerstein for her behavior.

When all was said and done, the court imposed sanctions of $250 against Ms. Healy, deferring further punishment to another judge who would be “undertaking a broad assessment of Ms. Healy’s conduct in the context of an order to show cause regarding terminating sanctions.”

Is there any wonder why judges feel more like hall monitors than judges in dealing with discovery disputes? But, as always, there is something to be learned here.

If your opposing counsel in a deposition suggests a coffee break—duck!

Richard W. Millar, Jr. is a member of the firm of Friedman Stroffe & Gerard, P.C. in Newport Beach. He can be reached at rmillar@fsglawyers.com.

Return