August 2012 - Dunkin’ Depos
by Richard W. Millar, Jr.
Ahh, depositions . . . I remember my first deposition. It was unusual in that I had a half dozen or more jury trials before I even saw a deposition. Actually, the first time I saw a deposition was when I took my first one. The deponent was Mary Miles Minter who, although I had never heard of her, was a very famous silent film star. She and her husband, who was a fellow named O’Hildebrandt, had hired an architectural firm to design a high-rise office building, to be modestly named the O’Hildebrandt Building, in downtown Santa Monica. We represented the architects. By the time of the deposition, Mr. O’Hildebrandt had passed on to his just reward, the building had not been built, and the architects had not been paid. It was a fairly routine collection action, except that it was against a faded movie star with a very unusual defense.
Yes, you read that correctly. Ms. Minter accused the architectural firm of murdering her husband. (I should have known at that time that I was destined for a lifetime of bizarre cases—which probably explains these columns—but I digress.)
In any event, as I recall it, Ms. Minter was dressed in black as befitting a widow, albeit not a recent one. According to Ms. Minter, the murder happened thusly: She and her husband were enjoying a day at home, when the telephone rang. Mr. O’Hildebrandt walked down the hall and answered the telephone. The call, it seems, was from someone at the architectural firm asking to be paid. Mr. O’Hildebrandt, unable to speak, clutched his chest and fell to the floor like a stone, with the telephone’s receiver on a long cord banging against the wall. Ms. Minter’s story may have been a little time-compressed, but it was hers, and she was sticking to it. The architect’s bill was, in her mind, excused, because the architects had murdered her husband. I don’t remember trying the case, so it must have resolved along the way.
Of course, I have had many depositions since then, some more mundane and some, in their own way, equally colorful. Most of the depositions that I have participated in have taken place in a lawyer’s office. A lesser, though still large number, have been in conference rooms maintained by court reporters. A few have been in hotels, hospitals or nursing homes, or private residences. Despite these many and varied venues, I confess that it has never occurred to me to take a deposition in a donut shop.
That is, of course, until now.
This story has its genesis in a case brought by employees of a limousine service in Florida alleging violations of the Fair Labors Standards Act which, in turn, caused it to end up before the Honorable Cecilia M. Altonaga, United States District Court Judge. The defendants moved to disqualify the plaintiffs’ lawyers, including particularly one Richard Celler. Stripping aside the arguments which have little entertainment value, the defendants claimed that Mr. Celler disparaged the defendants’ lawyer in the presence of, and sometimes directly to, his clients and chose to conduct depositions in, and I swear I am not making this up, a Dunkin’ Donuts Shop while attired in a tee shirt and shorts.
Florida has a rule of Professional Conduct that says a lawyer shall not, among a number of other things, disparage or humiliate other lawyers. In an email from Mr. Celler to a Mr. Coupal (defense counsel), Mr. Celler stated that “. . .you are not a trial lawyer,” and “we are not interested, nor are our clients, in settlement discussions with you, as long as you are the lawyer on the other side. You are causing your client a great disservice.” A witness testified that during depositions, he saw “Mr. Celler . . . drawing photos of pictures of male genitalia and showing them to [co-counsel], describing Mr. Coupal.” The same witness testified that during one particular deposition, “Mr. Celler was playing the game Angry Birds. He admitted it aloud and was bragging that he had just beaten somebody in Minnesota at the game during the deposition.” (I am told by my grandchildren that I am probably the only person in the connected universe that has neither downloaded nor played Angry Birds. Now I suppose I have a reason to download it and deduct the costs on my tax returns as an expense for deposition defense, but again I digress.) During these depositions, Mr. Celler would wear a tee shirt and shorts to gain, it was alleged, “a psychological advantage.”
Now there are a lot of things in life I don’t understand, starting with how someone eating donuts and drinking coffee while dressed in tee shirts and shorts, drawing pictures of pee-pees, and playing Angry Birds presents what could even be marginally described as a “psychological advantage.” A lot of things psychological occur to me, like Bellevue or Camarillo, but “advantage” is not one of them.
The Dunkin’ Donuts facility was described as:
. . . open glass, and open wall. You could hear the people. There was [sic] two video games right by where this gentleman is sitting. You could hear people in the free WiFi video games. It’s right near Nova’s campus. There were people coming and going constantly through that area, high-traffic area. They were yelling and screaming in the reception area where people were ordering their lunch and there was one bathroom that was flooded out and the door was locked constantly.
It should not be a surprise to anyone, except perhaps Mr. Celler, that the District Court was not amused and he and his co-counsel were disqualified and “relieved of all further responsibilities relating to plaintiffs in these proceedings.”
For those of you who need a moral to the story to get your MCLE points,
If you are going to take a deposition in a donut shop, wear long pants and upgrade to Krispy Kreme.
Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at firstname.lastname@example.org.