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February 2022 Millar's JurisDiction - Con Text

by Richard W. Millar, Jr.

Somehow, I missed the texting generation. Most of my electronic communications are by email. My first “not terribly smart” phone was a Blackberry Pearl which took some getting used to because each letter was part of a three-letter choice which made it three times as long to type and send even the shortest message. My grandchildren prefer texting. If I want to communicate with them, I send them an email and then text them to remind them to look at their inbox.

All of this got me wondering how texting started. (As usual, my wonderings were jump-started by an upcoming column deadline, but I digress.) According to my less-than-in-depth research, the first text message was sent by someone named Neil Papworth to a Richard Jarvis on December 3, 1992. It said, “Merry Christmas.” Despite my personal intransigence, texting is now the most widely used application in the world.

The pandemic, which seems to have stretched the meaning of the word “emergency” to lengths never seen before, has inspired new uses of texting.

Such as coaching a witness in a remote deposition.

That, in turn, brings me to one Derek Vashon James and the Florida Supreme Court.

Mr. James, it seems, represented an employer in a worker’s compensation case. The adjuster who worked for his client, one Renee Gray, was deposed by telephone. Mr. James, Ms. Gray, and the claimant’s attorney, Toni Villaverde attended via different telephones in different locations.

For some unknown reason, there was no video, which quickly became a problem when the court reporter refused to swear in Ms. Gray who was, at best, a disembodied voice on a speaker. Nonetheless, the deposition proceeded with the unsworn Ms. Gray.

At some point, Ms. Villaverde could hear “typing sounds” and she asked if Ms. Gray and Mr. James were texting during the deposition. Mr. James said he was not texting Ms. Gray, but was only receiving a text from his daughter. Ms. Villaverde asked Mr. James to stop texting and put his phone away and he acquiesced, or at least told her he did.

After a break, the deposition resumed and so did Mr. James’s text messaging, including some of the following:

“Just say it anyway.”
“Just say 03/28.”
“Don’t give an absolute answer.”
“All I can see at this time but I cannot rule out existence.”
“It’s a trap.”
“Then say that is my best answer at this time.”

While you could say Mr. James made a mistake in sending those texts, his larger mistake was sending them inadvertently to Ms. Villaverde, not Ms. Gray, thus “giving the store away,” so to speak.

Unsurprisingly, except perhaps to Mr. James, Ms. Villaverde stopped the deposition and moved for inspection of all the text messages sent during the deposition, including those with Mr. James’ daughter. No texts with his daughter were produced and Mr. James claimed that was due to his “technological limitations.” (It also could have been because they didn’t exist, but again, I digress.)

Suffice it to say, that all of this came to the attention of the disciplinary folks, resulting in a referee’s report finding Mr. James guilty of misconduct and recommending a thirty-day suspension.

The Florida Bar challenged the referee’s recommendation that Mr. James was not guilty of conduct prejudicial to the administration of justice.

The Florida Supreme Court approved the referee’s findings of fact and recommendations of guilt, but “disapproved” the recommendation that Mr. James was not guilty of conduct prejudicial to the administration of justice. The court held that his conduct was aimed at thwarting his opponent’s attempts to obtain evidence, that he undermined the adversarial process, and that the court’s intervention was required. In other words, he lied to Ms. Villaverde and to the judge. The Florida Supreme Court suspended him for 91 days.

All in all, I think I will stick with email.

Richard W. Millar, Jr. is Of Counsel with the firm of FSG Lawyers PC in Irvine. He can be reached at rmillar@fsglawyers.com.