Wayward Lawyer Conduct During Depositions

Wayward Lawyer Conduct During Depositions
http://www.scribd.com/doc/170766008/

U.S. J udge J ames D. Whittemore, U.S. District Court, M.D. Florida
Continuing Legal Education program of The Florida Bar
Basic Federal Practice 2007 CLE, comments of U.S. District J udge J ames D. Whittemore on the
erosion of professionalism. [Mr. Alperts] coffee-throwing incident.
Transcript, p. 23, #0444R - Basic Federal Practice 2007 CLE:
6 If you think that's the only example of
7 wayward lawyer conduct during depositions just get
8 on the internet and search around. It's just
9 hilarious some of the things that go on. There
10 have been fist fights in Tampa. There has been
11 coffee thrown across the table by one lawyer
12 against another in a Federal deposition room in the
13 Federal courthouse. There have been lawyers
14 clipping their nails during depositions. That kind
15 of conduct is reprehensible.
Special thanks to Tom Miller, Program Administrator of The Florida Bars Continuing Legal
Education (CLE) program, for both the audio CD #0444C (of the live presentation of Course
#0444R - Basic Federal Practice) and permission to prepare a written transcript.
A Tampa Police Department report J une 5, 2000, case number 00-42020, alleges Mr. Alpert
committed battery, F.S. 784.03, upon attorney Arnold Levine by throwing hot coffee on him.
Mr. Levine was then a 68 year-old senior citizen. The report states in part:
The victim and defendant are both attorneys and were representing their clients in a
mediation hearing. The victim alleges that the defendant began yelling, and intentionally
threw the contents of a 20 oz. cup of hot coffee which struck him in the chest staining his
shirt. A request for prosecution was issued for battery.
Ryan Christopher Rodems is listed as a witness on the police report but failed to inform me that
my lawyer Mr. Alpert was named in the report for battery on attorney Arnold Levine. This is a
composite of the documents, with the CLE transcript, and a $5M defamation suit by Mr. Levine.
The coffee-throwing incident and Mr. Rodems professional failing to report the battery to me is
plead at 21-22 in my Complaint (Doc. 1), Gillespie v. Thirteenth J udicial Circuit, Case 5:10-
cv-00503-WTH-DAB Document 1 Filed 09/28/10 Page 10 of 39.
Exhibit 1, Letter of Tom Miller, Program Administrator, Florida Bar CLE
Exhibit 2, St. Pete Times, Attorney's suit says he received coffee in the face
Exhibit 3, St. Pete Times, Bucs fans win in ticket settlement; At a recent
court hearing, Judge Pendino ordered the lawyers to "cut it out."
Exhibit 4, Tampa Police Department report June 5, 2000, case number 00-42020
Exhibit 5, Buccaneers v. Alpert, Barker & Rodems, Case 8:99-cv-02354-SDM
Exhibit 6, Transcript, Basic Federal Practice 2007 CLE, #0444R
THE FLORIDA BAR
651 EAST JEFFERSON STREET
JOHN F. HARKNESS, JR. TALLAHASSEE, FL 32399-2300 850/561-5600
EXECUTIVE DIRECTOR WWW.FLORIDABAR.ORG
December 30,2008
Mr. Neil J. Gillespie
8092 SW 115
th
Loop
Ocala, FL 34481
Mr. Gillespie:
After consulting with The Florida Bar legal staff, your request to prepare a written
transcript of the audio CD #0444C (of the live presentation of Course #0444R - Basic
Federal Practice) has been approved.
Sincerely,
Tom Miller
Program Administrator
1
23
1 lawyers. I'm sure they didn't have much in the way
2 of a defense. It's just an example of the erosion
3 of professionalism. The lawyers lost sight of what
4 they were doing, priorities got skewed, and it's
5 sad.
16 Well, we're here to talk about Federal Court
17 practice. All of this translates in the Federal
18 practice, even easier perhaps in State Court
19 practice because you're not going to be in front of
20 a Federal Judge for a hearing as often as you might
21 be in State Court. We don't conduct as many
22 hearings on motions as our counterparts in State
23 Court do.
24 I see what I call the anonymity factor. If
25 you think about when you're drafting that brief,
Attorney's suit says he received coffee in the face - Newspaper Archives | tampabay.com - St. Petersburg Times
Attorney's suit says he received coffee in the face
[SOUTH PINELLAS Edition]
St. Petersburg Times - St. Petersburg, Fla.
Author: SUE CARLTON
Date: Jun 6, 2000
Start Page: 4.B
Text Word Count: 402
Document Text
The Bucs' attorney says a season ticket holders' attorney splashed him.
Attorney Arnold Levine assumes that over the years, plenty of lawyers have probably wanted to throw coffee in his face.
In a lawsuit filed Monday, Levine says opposing counsel in a case against the Tampa Bay Buccaneers did just that.
The well-known lawyer alleges that he caught a faceful of coffee Saturday morning, during what was supposed to be an
effort to settle a case filed by season ticket holders unhappy with their seats at Raymond James Stadium.
Levine, who represents the Bucs, said there were at least 10 people gathered in the office of a lawyer who had been
appointed to mediate the dispute.
On the other side of the conference table sat attorney Jonathan Alpert, who represents the football fans.
Neither Levine nor Alpert would discuss what was said during the meeting, and the mediator could not be reached for
comment Monday.
But Levine alleges Alpert suddenly jumped to his feet, yelled at him and then stepped outside the room for a moment.
Levine said Alpert returned, "still ranting and raving," and launched the contents of his 20-ounce plastic foam cup into
Levine's face.
"It was lukewarm. It had cream," Levine said. "I don't know if it had sugar."
Levine said Alpert and his clients left.
Monday, Alpert would only say that he did not believe the accusations were "accurate." He also said he could not
discuss anything that went on in a confidential mediation hearing.
"I'm kind of shocked at this latest stunt," Alpert said.
Levine, who previously filed a defamation lawsuit against Alpert and the fans, sued again Monday, this time asking for
civil damages in the alleged coffee incident. Levine said he also filed a battery complaint against Alpert with the Tampa
police. He has the short- sleeved green knit shirt he had been wearing, which he says is now stained brown, in his
office.
"You never destroy the evidence," Levine said.
For his part, Alpert called it "much ado about coffee," far from the important issues of the lawsuit against the Bucs.
http://pqasb.pqarchiver.com/sptimes/access/54875819.ht...rney%27s+suit+says+he+received+coffee+in+the+face&pf=1 (1 of 2) [4/24/2008 8:45:42 AM]
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Attorney's suit says he received coffee in the face - Newspaper Archives | tampabay.com - St. Petersburg Times
"If Arnie would like me to buy him a cup of coffee," Alpert said, "I'd be happy to buy him a cup of coffee."
Reproduced with permission of the copyright owner. Further reproduction or distribution is prohibited without
permission.
Abstract (Document Summary)
[Arnold Levine], who previously filed a defamation lawsuit against [Jonathan Alpert] and the fans, sued again Monday,
this time asking for civil damages in the alleged coffee incident. Levine said he also filed a battery complaint against
Alpert with the Tampa police. He has the short- sleeved green knit shirt he had been wearing, which he says is now
stained brown, in his office.
Levine alleges Alpert suddenly jumped to his feet, yelled at him and then stepped outside the room for a moment.
Levine said Alpert returned, "still ranting and raving," and launched the contents of his 20-ounce plastic foam cup into
Levine's face.
permission.
http://pqasb.pqarchiver.com/sptimes/access/54875819.ht...rney%27s+suit+says+he+received+coffee+in+the+face&pf=1 (2 of 2) [4/24/2008 8:45:42 AM]
Bucs fans win in ticket settlement - Newspaper Archives | tampabay.com - St. Petersburg Times
Bucs fans win in ticket settlement
[SOUTH PINELLAS Edition]
St. Petersburg Times - St. Petersburg, Fla.
Author: SUE CARLTON
Date: Jun 22, 2000
Start Page: 1.A
Section: NATIONAL
Text Word Count: 802
Document Text
Season ticket holders unhappy with their seats will get to pick new ones closer to the 50-yard line thanks to a plan to
end a lawsuit.
Four longtime Bucs fans who sued the team over their seating assignments at Raymond James Stadium may now get
their pick of some of the best seats in the house.
Their attorney, Jonathan Alpert, announced in court Wednesday that both sides had reached an amicable settlement
after more than 13 hours of court-ordered negotiation that ended around 3 a.m.
If approved, the settlement will end an extraordinary case involving a sports team suing its fans, criminal battery and
extortion complaints, and one lawyer accusing another of tossing coffee in his face.
In a somewhat complex arrangement, the Bucs have agreed to make available 120 seats to season ticket holders
unhappy with their seats. About one-third of those seats will be in choice sections near the 50-yard line, and the four
fans named in the lawsuit will have first pick.
Also, each of the fans named in the class-action suit will be given a $5,000 credit that can be used to pay off tickets or
parking in the years to come.
The Bucs also agreed to drop the $1-million defamation suits they filed against three of the fans who complained
publicly about the Bucs and their seats after the team moved from Houlihan's Stadium to the newer, smaller stadium in
1998.
The Bucs also agreed to pay $180,000 in attorneys fees and $30,000 in costs.
Both sides agreed to drop pending criminal battery and extortion complaints alleging that one lawyer threw coffee in
another lawyer's face, and that the Bucs threatened to revoke the four fans' season tickets.
Wednesday's agreement forbade the usually gregarious Alpert from commenting further on the settlement, which must
be approved by Circuit Judge Sam Pendino.
"Instead of a lengthy dispute, we were able to amicably resolve our differences," Alpert said in a joint statement issued
by the Bucs on Wednesday. "Both sides are satisfied with the results. My clients and I look forward to cheering the
Buccaneers for many years."
Patsy Falcone, a fan for 15 years who found himself moved from the 50-yard line in the old stadium to the 10-yard line
in Raymond James, said he too could not discuss the case.
http://pqasb.pqarchiver.com/sptimes/access/55423074.ht...tpage=1.A&desc=Bucs+fans+win+in+ticket+settlement&pf=1 (1 of 3) [4/24/2008 8:52:48 AM]
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"I'm not going to elaborate on anything," he said.
Bucs lawyer Arnold Levine said, "everybody gave. Everybody made certain adjustments they felt were appropriate to
put the matter behind them."
Even though the stadium is "essentially sold out," no ticket holder will be involuntarily moved from a seat, Alpert said in
court. According to documents filed Wednesday, the process is expected to work like this:
The Bucs will make available 120 seats, most in upper sections of the stadium. The four fans who sued, who hold 11
tickets among them, will have first choice. They presumably will pick from 32 seats in two sections on the 50-yard line
on either side of the stadium.
The remainder of the 120 seats will be available to interested season ticket holders through a random selection process
supervised by a court-appointed hearing master. Those fans must be willing to give up their current seats and are only
eligible for available seats in the same price category. Season ticket holders are expected to be mailed a letter from the
Bucs detailing the arrangement.
The lawsuit, filed one year ago, alleged that instead of using the stated criteria for seat assignments - such as how long
someone was a ticket holder and where he sat at the old stadium - the Bucs used "other and secret" factors that may
have benefited VIPs and elected officials.
At a previous court-ordered settlement hearing, Levine said Alpert flung a cup of lukewarm coffee in his face and
stormed out. Alpert later countered that Levine had threatened that the fans could count on watching the games from
their living rooms if they didn't agree to settle that day.
At a recent court hearing, Judge Pendino ordered the lawyers to "cut it out."
Settlement talks began at 1 p.m. Tuesday and stretched past midnight. Those attending nibbled on cookies and kept
working even when the air conditioner cut out. Two sons of team owner Malcolm Glazer attended, one in person and
one by telephone from California.
The four fans were there, too, though one of them eventually had to leave to get ready for work Wednesday morning.
- Staff writer Roger Mills contributed to this report.
Here's the deal
The fans who sued get their pick of some choice seats at Raymond James Stadium.
Other season-ticket holders can vie for about 100 other seats in different parts of the stadium.
The Bucs pay all legal fees and drop defamation lawsuits against the fans.
permission.
Abstract (Document Summary)
The remainder of the 120 seats will be available to interested season ticket holders through a random selection process
supervised by a court-appointed hearing master. Those fans must be willing to give up their current seats and are only
eligible for available seats in the same price category. Season ticket holders are expected to be mailed a letter from the
Bucs detailing the arrangement.
In a somewhat complex arrangement, the Bucs have agreed to make available 120 seats to season ticket holders
unhappy with their seats. About one-third of those seats will be in choice sections near the 50-yard line, and the four
fans named in the lawsuit will have first pick.
The Bucs also agreed to drop the $1-million defamation suits they filed against three of the fans who complained
publicly about the Bucs and their seats after the team moved from Houlihan's Stadium to the newer, smaller stadium in
1998.
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Case 8:99-cv-02354-SDM Document 1 Filed 10/14/99 Page 1 of 14 PageID 1
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4 BASIC FEDERAL PRACTICE
5 2007
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7 Course No. 0444C
8 Disk 1 of 5
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12 SPEAKER: HONORABLE JAMES D. WHITTEMORE
U.S. District Judge
13
14 TRANSCRIBED BY: Michael J. Borseth
Court Reporter
15 Notary Public

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Michael J. Borseth
Court Reporter/Legal Transcription
(813) 598-2703
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1 * * * * * * * * * *
2 ANNOUNCER: The following program is
3 copyrighted material. Duplication, transcription,
4 or retransmission of these audio CDs in whole or in
5 part in any form is strictly prohibited without
6 written permission from the Florida Bar.
7 COMMENTATOR: On behalf of the CLE Committee
8 of the Florida Bar and Young Lawyers Division I
9 would like to welcome you to this morning's, or
10 this day's CLE. The CLE is the basic Federal
11 practice course number 0444R.
12 With that being said, I will go ahead and
13 introduce our first speaker, who is a Federal
14 Judge, James D. Whittemore. Judge Whittemore is a
15 graduate of a fine institution in Gainesville, the
16 University of Florida. I spoke to him before we
17 started today and his sports teams are having quite
18 a year or quite a year and a half. And it hurts me
19 as a Seminole, but they're doing well and best of
20 luck to them in the Final Four this weekend.
21 After attending undergraduate up in the
22 University of Florida, Judge Whittemore got his law
23 degree from Stetson. He was appointed to the
24 Circuit Court State bench here in Hillsborough
25 County in 1990, where he served until he assumed
3
1 his seat on the Federal bench in 2000. And he has
2 been a District Court Judge here in the Middle
3 District of Florida since May of 2000. And without
4 further adieu, I'll introduce Mr -- Judge
5 Whittemore, thank you.
6 JUDGE WHITTEMORE: Good morning. I'm the
7 judge that can't say no. Tony was very nice about
8 cell phones. I'm going to be a little more direct,
9 so get used to it. Turn them off. If one rings
10 you're going to be embarrassed. An example of a
11 Federal Judge's authority. I don't take it
12 lightly, believe me. But cell phones, you know,
13 they're a wonderful tool. But they're an annoyance
14 in certain circumstances. I'm sure you've all been
15 at Publix or in a mall somewhere where some person
16 is walking around yakking to himself or: Who's he
17 talking to? He's got his earplug in.
18 If one of those things goes off in a courtroom
19 that's probably the worst experience you will ever
20 have as a lawyer. It's happened in my courtroom
21 twice. It won't happen again with those lawyers.
22 And I didn't say a word the second time, all I did
23 was look at the lawyer.
24 I start with that somewhat light moment and
25 comment as a remainder that when you enter a
4
1 courtroom your conduct will be scrutinized by
2 everyone in the room, including perhaps most
3 importantly the judge before whom you want to
4 present hopefully a persuasive and winning argument
5 on behalf of your client. So never, ever forget
6 the importance of appropriate decorum in that
7 courtroom.
8 The topic this morning bright and early is the
9 ethics and professionalism of practicing in Federal
10 Court. My comments are not so much going to be
11 focused on Federal Court practice, because I think
12 they apply to State Court practice as well.
13 Years ago, in the 1920's, there was a sports
14 writer some of you may be familiar with by the name
15 of Grantland Rice. A graduate of Vanderbilt,
16 renowned sports writer who coined a pretty good
17 quote that I think's applicable this morning.
18 When the book of life is written and you look
19 beside your name you won't see if you won or lost
20 but how you played the game.
21 Your conduct as a professional is the most
22 important attribute you have. Your reputation will
23 be based on it. The receptive quality of a Judge
24 will be premised on your conduct in the past. Your
25 professionalism will be measured not only by the
5
1 Judge but your opponent by your conduct. So we're
2 starting with a discussion of your conduct.
3 For example, those who are coming in later
4 this morning, are not presenting a professional
5 appearance to me or you, are they? The rest of us
6 got here on time. I'm going to pick on them.
7 They're fair game. They're not listening. They
8 don't know I'm talking about them.
9 How many of you have been to Court already and
10 either not yourself but seen somebody hurrying
11 because they're late? Think about that. What's
12 the appearance factor? Think about the Judge who's
13 ready to go, has prepared for the hearing, and in
14 rushes the attorney with either the tie loose or
15 putting on a jacket or trying to pull files out.
16 That appearance sets a tone right away for that
17 Judge.
18 That Judge is your listener, you know. That's
19 your audience. And that first appearance does not
20 bode well if you hope to be persuasive and
21 convincing to that Judge that day. So first and
22 foremost, you have a responsibility to be on time,
23 be prepared, look good and ready to go. If you're
24 not, you're image is being compromised. Those are,
25 you know, common sense thoughts. But I can only
6
1 tell you that my perspective after 17 years of
2 doing this is that I know who's prepared and who's
3 not usually when they walk into the courtroom. And
4 if you're new, you have not appeared in front of me
5 before -- and I think this goes true for any Judge,
6 we're going to be looking at you. Who we got here?
7 Are they prepared? And we have elephant memories.
8 So if you stub your toe the first time you will be
9 forgiven. But if it happens again then it's a
10 pattern that we're starting to see, we're going to
11 lose a little confidence in your ability as an
12 advocate. And that translates more importantly
13 into, can we rely on your argument, your citations
14 of authority in making very important decisions?
15 And if we have to think about that then you've
16 already lost. You're way behind your opponent.
17 And I can't stress that enough. There is no room
18 for shortcuts. You have to be prepared. You have
19 to be diligent no matter what the issue.
20 I heard a comment this morning -- I'm not
21 going to pick on anybody but it's very common. He
22 handed me this last night at 9:30. Meaning senior
23 partner dumped on you. Right? I heard that. It
24 happens to all of us. I mean, you're a young
25 lawyer or maybe not so young, but you're going to
7
1 get dumped on. And it's going to come at a bad
2 time. But that doesn't mean that you don't do
3 what's necessary as a professional to prepare on
4 behalf of your client or senior partner and do the
5 job that's called upon to be done. So any
6 discussion of ethics and professionalism
7 necessarily begins with your professional conduct.
8 And I start with that and I'll end with that,
9 because that's what we're talking about this
10 morning.
11 Former Chief Justice Warren Burger of the
12 United States Supreme Court who was just an
13 incredibly fatherly grandfatherly figure, had a way
14 of saying things that really got your attention.
15 He is the father, if you will, of the current Ins
16 of Court movement in the country. More or less
17 founded it. Strong proponent of professionalism.
18 He believed in mentoring. He said once: Layers
19 who know how to think but have not learned how to
20 behave are a menace and a liability, not an asset
21 to the administration of justice. The necessity
22 for civility is relevant to lawyers because they
23 are living exemplars and thus, teachers every day
24 in every case and in every Court. Their worst
25 behavior will be emulated more readily than their
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1 best.
2 The Chief Judge of the Hawaii Supreme Court
3 Ronald Moon said this: Every member of the Bar
4 defines true professionalism, or the lack of it,
5 for those around them by his or her words and
6 behavior.
7 Again, that's the echo, the theme that Judges
8 are talking about. We are not impressed by lawyers
9 who are petty, lawyers who make disparaging
10 comments about opposing counsel, or worst, the
11 Court, or an opposing client. You are not winning
12 by engaging in that type of conduct, you are
13 hurting yourself and, more importantly, your
14 client's cause.
15 Every one of you who has practiced law for
16 more than six months has probably written or said
17 something that you regret about someone else; a
18 Judge, an opponent, opposing counsel. Don't do it
19 again. Plain and simple. Do what's right.
20 Do you think as a Judge that I'm going to rule
21 in your favor because you called the other lawyer
22 someone who is not deserving of a juris doctorate
23 degree something that I just read Tuesday in a
24 pleading? That lawyer's stock went down well below
25 what he could possibly dream about. He has forever
9
1 stamped in my chambers by my law clerk -- it was
2 already stamped by me, by the way, but I remember
3 my law clerk just could not believe a lawyer would
4 say something like that. Was it persuasive? Did
5 it help him win the argument? Of course not. It
6 just -- he lost all credibility because it had
7 nothing to do with the merits of the case. So
8 don't let yourself be dragged down by an unethical
9 or unprofessional opponent. Take the high road.
10 Distance yourself from that kind of conduct.
11 And if your senior partner insists on it,
12 stand up for yourself. You are expected to
13 exercise independent professional judgment, not
14 just do what some other lawyer tells you to do. It
15 may just be they want you to do their dirty work.
16 But you're the one that might be standing in front
17 of me prepared to make a great argument and I just
18 cut you off and ask you why did you say this. And
19 I have done it. And I think a lot of my colleagues
20 will do it, because it's distracting, it doesn't
21 help us make decisions. It's time consuming.
22 And if you're a busy judge, and most of us are
23 busier than you think, you can get very irritated
24 very quickly by being distracted from the important
25 decision making that we are required to undertake
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1 by our oath.
2 Ethical conduct and professionalism, is there
3 a distinction between the two? Well, there really
4 is if you think about it. In Oregon the State Bar
5 Association in their statement of professionalism
6 recognizes that professionalism includes integrity,
7 courtesy, honesty and willing compliance with the
8 highest ethical standards. Professionalism,
9 however, goes beyond observing the legal
10 professions ethicals rules. Said another way:
11 Professionalism differs from ethics in the sense
12 that ethics is the minimum standard.
13 Professionalism, on the other hand, is a higher
14 standard expected of you as a lawyer. So it's not
15 enough merely to subscribe to and follow the
16 ethical rules, which you will all undoubtedly try
17 to do, you have to commit to the ideals of
18 professionalism, which is a much broader concept
19 because professionalism fosters respect and trust
20 among lawyers and most importantly among and
21 between lawyers and the public.
22 And that's another theme, your conduct in this
23 room, your conduct this afternoon, your conduct in
24 traffic, will be observed by members of the public.
25 If they see one of you conducting yourselves
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1 inappropriately, that reflects on me and the person
2 sitting next to you. You are an officer of the
3 Court. You must act, in my opinion, better than
4 anybody else. Because you represent my branch of
5 government, the judicial branch and the
6 administration of justice. And if the public loses
7 trust in what I do and in what you do, that
8 jeopardizes a lot of things, ladies and gentlemen.
9 You've seen the tension, you've seen the arguments,
10 you've seen the commentary by elected public
11 officials. Ridiculing judges in decision making
12 and lawyers. You have heard the lawyer jokes.
13 Some of them are hilariously funny. They're good
14 jokes. But you got to learn to laugh at them,
15 laugh with them. We don't want our image to be
16 tarnished anymore than it already is by a few
17 wayward members of our profession. So conduct
18 yourselves in an appropriate way.
19 My older brother, who is a plaintiff's lawyer,
20 told me a great story once. A friend of his was on
21 his way to trial one morning to pick a jury. It
22 was a Monday morning. And he's in traffic, and he
23 did what you and I have done, somebody cut him off
24 and he flipped it up. The universal salute. And
25 you know who was on the jury panel? The other
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1 driver. Obviously, that other driver was excused,
2 but it was surely an embarrassing moment for that
3 lawyer who then realized, oh, my gosh, what am I
4 going to do now? What do I say? What questions do
5 I ask? Can you overlook the fact that I flipped
6 you off this morning in traffic and be a fair
7 juror?
8 You know, we're all going to make decisions
9 and mistakes in our conduct, we're human beings.
10 Undoubtedly, you have made mistakes in your
11 conduct. But most of us get past it. But just be
12 aware that people are watching. And for the future
13 of our profession and the administration of justice
14 be aware that your conduct is the most important
15 attribute that you have.
16 We are a noble profession and the drafting of
17 the Bill of Rights and the Declaration of
18 Independence and the Constitution you will find
19 that most of those participants were lawyers.
20 Thank God. Without that sense of law, the common
21 law, who knows what type of document we might have
22 had. So there is a rich heritage in our country
23 that is sometimes overlooked by others. Uphold
24 that heritage. It's very noble. We are vital to
25 the freedoms that we cherish in this country and
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1 you have that responsibility. Even if you practice
2 in Workers' Comp you still have a representative
3 role in the administration of justice.
4 Last year by count of the Florida Bar there
5 were over 70,000 lawyers in this state practicing
6 law. That's approximately doubled since I begin
7 practicing law in 1977. And the time will go by
8 like that, I assure you. Some of us know that.
9 Time flies. 70,000 competitors out there.
10 In 1993 the Florida Bar commissioned a survey
11 of Bar members -- now these are lawyers --
12 regarding the attitudes and characteristics of
13 Florida lawyers. Here are the results of that
14 poll. Many felt that a substantial minority of
15 lawyers -- I'm not sure what that means,
16 substantial minority. That's kind of lawyer talk,
17 isn't it. That a substantial minority of lawyers
18 were money-grubbing, were too clever, tricky,
19 sneaky, couldn't be trusted, had little regard for
20 truth or fairness, were willing to distort and
21 manipulate and conceal in order to win. Were
22 arrogant, condescending, abusive, pompous and
23 obnoxious. Pretty strong words.
24 In 1995 the Florida Bar commissioned another
25 study of the follow up and here was the consensus.
14
1 The lawyers found that the most serious problems
2 that we face as Florida lawyers are the lack of
3 professionalism and the lack of ethics. That has
4 been a theme now for over ten years in every
5 address that I have given to young lawyers and I
6 suspect in every address any of my colleagues have
7 made to young lawyers because of the importance of
8 professionalism and ethics in your practice.
9 So in 2007 we're still discussing
10 professionalism and ethics and I am trying to carry
11 the message to you that that is if not the most
12 important attitude, it's surely up there in the top
13 one or two. My perspective on the importance of
14 discussing the need for professionalism is based on
15 the oath of admission to the Florida Bar, where you
16 agree to maintain respect to the courts of justice
17 and judicial officers and you will abstain from all
18 offensive personality.
19 In the preamble to the guidelines for
20 professional conduct in the trial lawyers section
21 of the Florida Bar to find that to the judiciary a
22 lawyer owes candor, diligence and the utmost
23 respect.
24 Let me pause for a moment. That doesn't mean
25 that you have to like Jim Whittemore. And you
15
1 don't have to respect the person Jim Whittemore,
2 but it does mean that you should respect the
3 position.
4 You are going to run into judges with whom you
5 have difficulty. Regardless of who is at fault.
6 It's important to remember that that is an
7 individual who will be replaced one day, but the
8 office will be maintained. So it's the office, the
9 judicial office that you should always respect.
10 And if you have a problem with an individual judge,
11 time will pass. But the office will remain. If
12 you lose a hearing and you're walking back to your
13 office with your client trying to explain why you
14 lost, here's the typical explanation. You know,
15 that Judge was just not listening. The Judge
16 didn't read the pleadings. The Judge obviously was
17 prepared. You know, I think that Judge knows that
18 other lawyer. I think they play golf together.
19 It's something. You know, I'm not sure, you know,
20 it's obvious the Judge isn't very smart, went to
21 Stetson.
22 And the client is hearing all this and could
23 care less what you're saying, but the client's
24 hearing this. And you know what you're really
25 telling him, him or her? The system has failed.
16
1 You shouldn't have respect and trust in the system
2 because you got a bad judge. That translates into
3 a much, much bigger problem. That client has
4 forever lost faith in the administration of justice
5 and you have caused it. And why would you want to
6 cut your own throat by instilling in that client
7 the perspective that what you do for a living is
8 not important. So think about that.
9 What you should be saying is, I think the law
10 is on our side. The facts didn't go our way. You
11 have a couple of options. We can appeal. Or we
12 can put it behind us because it's just one small
13 battle, but it's not the war. Talk to your client
14 as a professional without denigrating the judge or
15 the administration of justice. You will have those
16 moments, so think about that.
17 The essential aspects of professionalism that
18 I have listed are: Respect, dignity, civility,
19 cooperation. Pretty simple. What is
20 professionalism? Just doing what's right. Use
21 your common sense. Treat people with courtesy,
22 with dignity. Whether it's your opponent, whether
23 it's a pro se litigant against whom you're
24 litigating, whether it's an adversary, a party who
25 has lied or done something fraudulent. It doesn't
17
1 mean that you can't treat that person with at least
2 facial respect and courtesy. If you don't, you are
3 falling below the bar.
4 I have an example of when good lawyers fail to
5 conduct themselves with civility, courtesy and
6 integrity. I call it The Pizza Deposition. I know
7 both of these lawyers. I'm not going to name them.
8 But they have tried cases in front of me. I like
9 them. But here's what happened. They're in the
10 middle of a deposition and the questions start:
11 When you came to the United States did you come
12 with anyone? Answer: No. When you lived in Egypt
13 is that the only country you've ever lived in prior
14 to coming to the United States? Yes. Did you ever
15 get convicted of any crimes while you were in
16 Egypt? Answer: You asked me this before. No.
17 Question: Well, it was a little different before,
18 actually. Opposing counsel: It was? The party
19 conducting the deposition: That's a no? The
20 answer was from the deponent: No.
21 Now at this point parenthetically is this: "A
22 pizza was delivered to the deposition suite."
23 Opposing counsel: Are you really going to eat this
24 now? Plaintiffs lawyer: Unless that offends you.
25 No, it doesn't offend me. Okay. Opposing counsel:
18
1 I mean, okay. Are we going to take a break then?
2 No, let's launch ahead. You're going to lunch
3 while you ask him questions? Sure. Okay.
4 Plaintiff's lawyer: Wait until you see what
5 happens when I have to go to the bathroom.
6 Now, this started out a little jokingly but
7 the deponent then jumps in: I'm going to come with
8 you? His lawyer: No, you and I are going to be in
9 one stall, he's going to be in the other stall.
10 He's going to be in the third stall. Wait until
11 the trial. All right. Here we go. You're a nut.
12 Oh, man, if I wasn't on a diet I would have some.
13 I would have brought half of it.
14 It's humorous and it was probably humorous
15 between the lawyers. But what was the message to
16 the deponent, the non-lawyer? What's going on?
17 They're taking my deposition, I'm being sued and
18 they're eating pizza and joking about going in the
19 bathroom being in different stalls. The message is
20 bad. So unintended but a terrible oversight by the
21 lawyers.
22 I had a lawyer in front of me a couple years
23 ago, a fine lawyer with whom I have had a lot of
24 professional dealings. He's tried several cases in
25 front of me. He's a good lawyer. If I were going
19
1 to refer somebody in that particular field, a
2 friend, that might be a lawyer that I would refer
3 to. But one day in trial in the heat of the moment
4 I ruled against him. And what he did I'll never
5 forget. He balled up a piece of paper and tossed
6 it on the table in front of the jury. Hum. I
7 waited until the break. That was my movement.
8 Brought him up. And I chewed him out. And he was
9 floored. He was embarrassed. He was humiliated.
10 He regretted he did it. He was personally
11 offended, as I was. But I reminded him: You know,
12 you and I will go along for a long time together,
13 but that jury just witnessed you do something
14 disrespectful to the Judge. And you know who the
15 jury thinks is the smartest lawyer in the room?
16 Right or wrong, I'm the judge. You disrespect the
17 judge in front of the jury, you lose. Plain and
18 simple. They don't like that. Again, it's the
19 conduct. It's a regrettable incident in his life,
20 he probably will never do it again, but it happened
21 and hopefully we've all learned from it. Lost the
22 case, by the way. Not that it had much to do with
23 it.
24 In 1993 former Florida Bar president, now
25 Federal Judge in the Southern District of Florida,
20
1 Pat Seitz, referred to the growing lack of civility
2 that she had observed as "Our own form of domestic
3 violence." In which we "have a fixation with
4 strength which we equate with toughness. We kill
5 the other side as we try to win even our phone
6 calls. And this fixation so consumes us that our
7 attitudes are colored, we end distrusting everyone,
8 we engage in personal attacks. What she calls Pit
9 Bull tactics as revenge for any perceived slight,
10 however slight, to avoid the humiliation of losing.
11 This win at all costs mentality that is so
12 persuasive in our society will creep into your
13 practice. Your clients expect it. Maybe your
14 senior partners expect it.
15 Let me simply suggest that you not fall into
16 that trap of winning at all costs. It's not worth
17 it. You can drop dead tomorrow and it will not
18 have mattered whether you won that motion hearing
19 yesterday. So keep things in perspective. You
20 have one client on a single day on a single motion
21 hearing in front of a Judge. That will not be the
22 last client. That will not be the last motion
23 hearing. It will not be the last judge before whom
24 you appear. Invest in your future. Don't do
25 something or say something that will stay with you
21
1 throughout your profession or career.
2 Judge Marvin Aspen, Northern District of
3 Illinois has been on the bench since about 1970.
4 And he is a proponent of professionalism and has
5 just a wonderful grasp of the concept. He talks
6 about an expanded Bar, meaning a larger Bar.
7 70,700 lawyers, pretty large Bar. An expanded Bar
8 begets more competition, which begets more
9 aggressive litigation styles, which begets a loss
10 of collegiality, a loss of trust, a loss of
11 respect. He says once that trust is abused or
12 gone, lawyers and judges who have been stung by
13 incivility adopt appropriately defensive and
14 hostile attitudes. Judges can be just like that.
15 So if you are abusive and aggressive, you're going
16 to promote distrust and judges are going to react
17 accordingly.
18 Not all of us do. Some judges are just potted
19 plants up there and they have incredible control
20 over their emotions. Your dad is like that.
21 Right? I'm not. You can ask my law clerk back in
22 the back. I wear it right here. But we back it
23 up. We have been there. We have had that
24 experience. But we're going to let you know if you
25 cross that line. You will find that the Federal
22
1 Judges in Tampa, the Middle District of Florida,
2 every one of them expects you to act appropriately.
3 When you stray you're going to be called on it.
4 Sometimes nicely, sometimes not so nicely.
5 Let me read this little deposition excerpt.
6 Now, this is a multi million dollar plaintiffs
7 case. It's a quote from a deposition. And I'm
8 going to refer to the lawyers as A and B. It
9 starts with this. These are quotes.
10 Attorney A: I call this Hairpiece Joe the
11 Bully versus Tubby: "You don't run this
12 deposition, do you understand? Neither do you,
13 Joe. You watch and see. You watch and see who
14 does, big boy. And don't be telling other lawyers
15 to shut up. This isn't your GD job, fat boy.
16 Well, that's not your job, Mr. Hairpiece. As I
17 said before, you have an incipient -- and he's cut
18 off. What do you want to do about it AH? You're
19 not going to bully this guy. Oh, you big tub of
20 it, sit down. I don't care how many of you come up
21 against me. Oh, you big fat tub of -- sit down.
22 Sit down, you fat tub of --
23 That's a -- those are quotes from a deposition
24 in Illinois in a Federal Court case. Can you
25 imagine what Judge Aspen had to say to those
23
1 lawyers. I'm sure they didn't have much in the way
2 of a defense. It's just an example of the erosion
3 of professionalism. The lawyers lost sight of what
4 they were doing, priorities got skewed, and it's
5 sad.
16 Well, we're here to talk about Federal Court
17 practice. All of this translates in the Federal
18 practice, even easier perhaps in State Court
19 practice because you're not going to be in front of
20 a Federal Judge for a hearing as often as you might
21 be in State Court. We don't conduct as many
22 hearings on motions as our counterparts in State
23 Court do.
24 I see what I call the anonymity factor. If
25 you think about when you're drafting that brief,
24
1 that memorandum, that motion, in the back of your
2 mind you have to assume you're not going to have a
3 hearing in front of the Judge so you got to put it
4 all in there. And if you have been wrangling with
5 your opponent, sometimes what happens is the tone
6 of what you say, if not the substance, becomes a
7 bit unprofessional and you throw a little
8 disparaging footnote in there about your opposing
9 counsel. Because you really want the Judge to
10 know, this guy's a real pain. I mean, I got to let
11 the judge know.
12 Well, when we get that the red flags go up,
13 the blood pressure rises, because we're trying to
14 make a difficult decision and all of a sudden we're
15 reading about your opinion of your opposing
16 counsel. It's distracting, it's infuriating. And
17 I think the problem is that you're not thinking
18 about the fact that I'm reading, or my law clerk is
19 reading your brief, drawing conclusions about your
20 professionalism. Whereas, if the motion were set
21 for a hearing, you're drafting your motion and memo
22 knowing that you're going to be looking at me, with
23 your opponent right next to you you probably
24 wouldn't say those things. Or at least in the way
25 that you said them.
25
1 So I think this anonymity factor is one of the
2 problems we have in our profession. There's just
3 so many lawyers and so many judges. And you're
4 just not going to feel a sense of accountability
5 that you might otherwise feel in State Court when
6 you're sitting at a hearing table three or
7 four feet from your opponent and three or four feet
8 from the Judge and you wouldn't dare say something
9 like you would put in that memo.
10 So in Federal Court I think all the more
11 reason to be very careful how you say things.
12 Sometimes it's not what you say to a judge, it's
13 how you say it that can carry the day. Watch your
14 tone. Watch your adjectives. Watch your
15 superlatives. We don't need those things. You
16 think you're trying to be persuasive but you're
17 really just adding fodder to the substance of what
18 you're trying to get across.
19 My advice in the Federal practice starts with
20 knowing our local rules and following those rules.
21 Now, wherever you practice your court will have
22 local rules. It is incumbent upon you to pull
23 those rules, read through them to make sure that
24 whatever those judges expect of you you will comply
25 with.
26
1 Not long ago I ruled on an attorney fee
2 application and the lawyer from Chicago spent four
3 hours reading our local rules. Well, that was
4 commendable, but the lawyer's not going to get $270
5 an hour for doing that. But that's commendable.
6 Read those rules.
7 Let me give you a few examples. As a young
8 lawyer or as a lawyer new to the Federal practice,
9 you have to start with these local rules. For
10 example, Rule 3.01 of the Middle District of
11 Florida rules talks about motions, briefs and
12 hearings. This might be the most important rule.
13 Every motion must be accompanied with a memorandum
14 of law. Combined they shall not exceed 25 pages.
15 One Judge will get to the 25th page and tear
16 off the rest of them and put them in the toilet.
17 Literally. You send one to me, we just strike it.
18 I don't know what some other judges do, but I know
19 they all adhere to this local rule. If you think
20 you need more than 25 pages then you need to file a
21 motion. Local rule tells you, you have to seek
22 leave of Court before filing it. You're going to
23 be denied in 80 percent of the cases. If you can't
24 say what you have to say in 25 pages, I'm sorry,
25 but you're not going to say it in 35.
27
1 Think about back in law school when you read
2 that first Supreme Court case and how many times
3 you had to read the first three or four paragraphs
4 to understand what the Court was even talking
5 about.
6 You know, as human beings we have limited
7 attention ability and comprehension. We're taught
8 to watch TV and look at the Internet and visually
9 that's how we learn now. So it's very difficult to
10 stay focused if you're reading a 25 page memorandum
11 of law. Even if it's the best Memorandum of Law
12 you've ever written. What you have to say should
13 be succinct, to the point, persuasive not by
14 adjectives and superlatives but by reasoning and
15 logic.
16 You are not allowed in Federal Court to file a
17 reply, unlike State Court. If you file one it will
18 be stricken and you will be embarrassed. If you
19 feel that you need to file a reply you should file
20 a motion seeking leave, but do not attach the reply
21 to the motion. And that motion should be succinct
22 and your reply, if granted, cannot be more than
23 five pages unless the Court allows you. Actually,
24 the motion can't be more than three pages. If you
25 think you have an emergency motion my first
28
1 reaction is -- right Shannon? Unless somebody's
2 dying or someone needs a blood transfusion, it's
3 not a true emergency as far as we're concerned. I
4 don't care what your client says. We deal with
5 life and death matters.
6 So if your client is all upset because some
7 former employee has made a big sale to a former
8 customer, it's not an emergency in our mind. It's
9 an important issue but we're not going to stop the
10 world to take care of it. You should designate a
11 true emergency as an emergency motion. If it's
12 not, don't designate it.
13 Here is a suggestion. If it's an important
14 matter your client needs prompt address by the
15 Court but it's not truly an emergency, then just
16 file a motion requesting expedited consideration.
17 Instead of saying emergency. And we go, no, it's
18 not. And if you wait until Friday afternoon at
19 four o'clock to file it, we are not going to look
20 at it. And that happens almost every other week in
21 our courtroom. Friday afternoon at four o'clock
22 emergency motion, non-compete clause. What have
23 you been doing all week? Get it to us Wednesday
24 and we will get to it by Friday for sure, we're
25 mindful of our responsibility.
29
1 You know, today marks the thirtieth -- it's
2 the end of the Civil Justice Reporting Act period
3 for Federal Judges. Today we have to report to the
4 United States Administrative Office any motions
5 that have been pending on our docket more than six
6 months, any cases which have not been resolved
7 within three years. It is published on the
8 Internet for all the world to see. None of us
9 wants to report that we have ten motions that are
10 more than six months old or thirty cases.
11 Sometimes it happens. But yesterday and today and
12 Wednesday have been fairly busy in my office.
13 We're cranking. We're trying to get things out of
14 the way. My law clerks finish their work Monday,
15 Tuesday. Some of the habeas corpus stuff is
16 trickling in still, but you know, you throw an
17 emergency motion on me today, you can imagine the
18 reaction in chambers if we still got matters we're
19 trying to get resolved that may be six months old.
20 Now, that's another subject. Why would a
21 Federal Judge sit on something six months? Well,
22 there's a lot of reasons. Twenty-six, 25 page
23 memos from each side, maybe a reply. You know, we
24 got to read a hundred cases. It's hard to do. It
25 takes a lot of time. And we've got 350 cases. So
30
1 there are reasons.
2 Before you file any motion in a civil case in
3 Federal Court other than dispositive motions,
4 injunction type motions, under Rule 3.01(g), you
5 must certify to the court that you have spoken with
6 opposing counsel, you have attempted to resolve the
7 issues and either you have or you have not. And it
8 is not acceptable for you to say opposing counsel
9 was unavailable. That's right in the rule. You
10 have a continuing duty to certify your continuing
11 efforts to talk with opposing counsel. And what
12 this rule is designed to do is ensure that you're
13 communicating with your opposing counsel, that
14 you're not throwing your petty issues on us, that
15 you can resolve it if you just sit down and talk to
16 each other. Now, if you've tried and you can't
17 resolve it in good faith, fine, we'll make the
18 decision. If you don't have the certification on
19 your motion it will be stricken. You will be
20 embarrassed.
21 Rule 3.05. Another important rule that you're
22 going to encounter as a new lawyer to Federal
23 Court; the case management requirements. Within --
24 on a track two case within 60 days after service of
25 process, unlike in State Court, you are required to
31
1 sit down with opposing counsel and draft a proposed
2 case management report. Which addresses discovery,
3 what kind of discovery, how much discovery, when
4 your dispositive motions are going to be filed, the
5 deadlines. Discovery plan, if you will. All of
6 those things have to be agreed on. If you can't
7 agree with your opposing counsel, don't file a
8 unilateral case management report, it will be
9 stricken. If you have a pro se opponent, very
10 difficult situation, and you can't get them to
11 cooperate, there is a way around it. Use your
12 common sense. If you're the judge what do you want
13 to hear? Not that: Here's my unilateral case
14 management because this person isn't cooperating.
15 A motion to conduct a hearing for the purpose of
16 preparing a case management report in front of the
17 magistrate at which time all parties will be
18 present. You're telling me what the problem is
19 without being disparaging.
20 Rule 5.03, courtroom decorum. When you're in
21 a Federal Courtroom you stand. When the jury
22 enters, when the Court enters, when it's your time
23 to address the Judge. Now, this is a requirement
24 in Federal Court. It is not necessarily a
25 requirement in State Court. It depends on the
32
1 Judge. If you don't stand when you're addressing a
2 Federal Court, the Court security officer is going
3 to give you a gentle reminder.
4 Judge Castagno used to say: I'm sorry,
5 Mr. Whittemore, I didn't hear your objection. You
6 need to speak a little louder. I'm sorry,
7 Mr. Whittemore, I didn't hear your objection.
8 Pretty soon the marshal will come over and -- stand
9 up, dummy. That's how I learned.
10 Address your remarks to the Court, not
11 opposing counsel. Again conduct, appropriate
12 conduct. Who's your audience after all? Opposing
13 counsel's not going to make the decision, I am.
14 Talk to me. When you have an objection, state your
15 legal grounds. Don't go off into a big
16 explanation. Local rule says: When making
17 objections counsel should state only the legal
18 grounds for the objection and withhold all further
19 comment or argument unless elaboration is requested
20 by the Court.
21 What do all these rules have in common? Your
22 conduct. Why have these rules? Because in a
23 Federal courtroom decorum is very important. Most
24 litigants think this is a special place. And it
25 is. Is it more special than a State courtroom?
33
1 No. You know that and I know that. But the
2 Federal system is thought to be by the non-lawyer
3 public as the final place for asserting individual
4 rights under the constitution. The cases have a
5 great degree of notoriety in large part. So these
6 are rules of conduct intended to promote the
7 appropriate decorum in a courtroom where decisions
8 are made on a day to day basis that effect people
9 in important ways.
10 In my last couple of minutes I want to give
11 you a chance if you have some questions to fire
12 away. You don't get many opportunities to ask a
13 Federal Judge about this or that. But let me
14 suggest a few things. Don't interrupt a Judge.
15 Don't try to talk over a Judge by raising your
16 voice. Who's going to win that? Don't make faces
17 or roll your eyes. In my courtroom in front of a
18 jury just last week there was a lawyer from New
19 York -- that phone better be turned off, whoever it
20 is. See. Probably one of the newcomers. Got here
21 late. Didn't hear all my remarks. And I'm smiling
22 because I know it can happen.
23 This lawyer sat in the back -- and I didn't
24 see it. Thank goodness. Rolling her eyes, doing
25 this when the prosecutor was talking. And I got on
34
1 my CSO about that. Because that is something the
2 jury noticed. They're the ones who told me about
3 it. What does that say about our profession? When
4 the hearing is over, it's over. Don't try to add a
5 couple two bits in there. The judge rules, that's
6 it. Shake hands with your opponent.
7 You know, in golf there's a great tradition.
8 When you've had a competition and on the 18th hole,
9 the last putt falls into the cup, somebody wins.
10 Tradition is you shake hands with your opponent.
11 And it's intended to bring you back together as a
12 human being, to two human beings. Forget the
13 competition, it's over with, let's go have a beer.
14 In a courtroom setting let me suggest the same
15 thing. Not the beer part. Unless that's your
16 chosen beverage. Shake hands with your opponent.
17 You'll probably catch them off guard. You will get
18 a leg up on them. More importantly, you're
19 communicating to the Judge and to your clients that
20 above everything else, we're professionals. And we
21 can duke it out with the best of them, but when all
22 is said and done we're going to shake hands and act
23 professionally.
24 Remember that your reputation is all that you
25 will have with you when you leave this earth. It's
35
1 not about winning and losing, as Grantland Rice
2 says, it about how you played the game. Conduct
3 yourselves professionally, and you will promote the
4 administration of justice. You have decided to
5 enter this profession, you have an obligation to
6 perpetuate it by acting appropriately. Your
7 representation and your credibility are directly
8 related to the manner in which you conduct
9 yourselves.
10 I love being a Judge. I loved being a lawyer.
11 I didn't like the billing part, the hourly stuff,
12 but you know, it's a pretty good profession if you
13 think about it. We can make good livings. Not all
14 of us will get wealthy, but we have a unique
15 opportunity, a privilege, if you will, to stand in
16 courtrooms, to represent our client's interest.
17 And the administration of justice is as important
18 to the institution that we call the United States
19 of America as anything else. And you know that.
20 The public doesn't necessarily appreciate that,
21 unless it's their turn to be in court. And then
22 they want the best lawyer in the world and the best
23 Judge.
24 So think about that the next time you lose
25 your temper or you're about to or you're about to
36
1 flip somebody off in traffic, or you're about to
2 maline a Judge for the ruling that he or she made.
3 Think about how you say something and what you say.
4 I appreciate it. If you have any questions
5 I'll maybe answer them. Jamie, no questions? Back
6 behind you.
7 AUDIENCE MEMBER: (Inaudible)
8 JUDGE WHITTEMORE: Why?
9 AUDIENCE MEMBER: I'm just a little bit
10 confused as to why.
11 JUDGE WHITTEMORE: That's a great question.
12 And most of you have heard that. Oh, God, don't go
13 to Federal Court. And that's why a lot of defense
14 firms remove cases to Federal Court because they
15 want to give that plaintiff a more difficult time.
16 You know, I don't disagree with those
17 statements. It is a little more difficult, because
18 you've got to play by a different set of rules.
19 But I can tell you that it's all intended to
20 produce a better result. So when you require
21 lawyers to think about discovery and to plan
22 things, you're not going to have Helter Skelter
23 midway through the case, hopefully. So it's all
24 designed to be a better system. And I can only say
25 that from my perspective. I've tried cases in
37
1 Federal Court as a lawyer, I've tried a lot of
2 them. I didn't like it as a lawyer. But as a
3 Judge I have learned to understand that those rules
4 are there for a reason and the reason in the long
5 run is a good reason. But don't be afraid of it.
6 You're all capable of grasping it. It's really
7 pretty simple. It's just new. It's a little
8 different. And I hope that answers it, but be
9 apprehensive.
10 AUDIENCE MEMBER: It does answer that, but one
11 question I have. What I really don't understand is
12 not being able to take depositions of -- in
13 criminal cases.
14 JUDGE WHITTEMORE: Well, you know, that's a
15 big difference in the Federal and State system.
16 And it's simply the Rules of Criminal Procedure as
17 promulgated by, you know, they don't just drop out
18 of the air, the Federal system is really a one way
19 street in a criminal sector. And I don't mean that
20 everybody is going to be convicted, but it's just
21 not the same. You know, Florida is only one of I
22 think eight states in the country that allows
23 depositions in criminal cases, in felonies. I
24 mean, it's not the rule, it's the exception. You
25 learn how to discover a case without depositions
38
1 you will be a good lawyer. That's what I learned.
2 You learn how to investigate and discover things.
3 And the civil side, when you find that there are
4 limits on your civil depositions, there's a reason.
5 That's so that, you know, don't harass and annoy
6 everybody in the world as a scorched earth tactic.
7 And that's what Cabasa tries to do. And we cut him
8 off, we won't let him do that. I'm picking on you.
9 Anybody else, a question? I have enjoyed it.
10 I hope that you see the human side of Federal
11 Judges. We're all the same. Come from different
12 backgrounds but we all think pretty much the same
13 about certain things. And some of us are a little
14 more vocal than others. But I want you to not be
15 apprehensive about going to Federal Court. But I
16 do want you to understand that we will expect more
17 of you than perhaps you're anticipating. Thank
18 you. Yes, ma'am.
19 AUDIENCE MEMBER: Can I make an observation?
20 JUDGE WHITTEMORE: Sure.
21 AUDIENCE MEMBER: I'm used to practicing in
22 (inaudible) Florida.
23 JUDGE WHITTEMORE: That is the most difficult
24 aspect of being a lawyer I think today. Your
25 clients expect you to be a jerk, particularly if
39
1 the other side's a jerk. And I don't know what the
2 answer is, other than to tell you how I used to
3 deal with it. You have to try to neutralize that
4 by your own conduct. Take the high road. Have a
5 heart to heart with your client day one. Day one
6 don't let that client tell you how to be a lawyer.
7 Exercise professional judgment independently of
8 your client's motives.
9 You know, the hardest thing to say to a client
10 is no. But that's sometimes what they want to
11 hear. And you say it to a client and you back it
12 up, that client's going to respect you forever and
13 is going to rely on you for good advice. They do
14 want you to be nose to nose, but at the same time I
15 think deep down they want a lawyer who the Judge is
16 going to respect, who has credibility with the
17 Judge, and you just got to sell yourself and the
18 profession to them day one.
19 And you know and I know that when you get in
20 the courtroom that's not going to work. And it's
21 not going to be persuasive, it's not going to help
22 your client's cause. But there is just no easy
23 answer other than to take the high road.
24 Great question, though. Thank you all.
25 * * * * * *
40
1 C-E-R-T-I-F-I-C-A-T-E
2 STATE OF FLORIDA
3 COUNTY OF HILLSBOROUGH
4
5 I, Michael J. Borseth, Court Reporter
6 for the Circuit Court of the Thirteenth Judicial
7 Circuit of the State of Florida, in and for
8 Hillsborough County, DO HEREBY CERTIFY, that I was
9 authorized to and did transcribe a tape/CD recording of
10 the proceedings and evidence in the above-styled cause,
11 as stated in the caption hereto, and that the foregoing
12 pages constitute an accurate transcription of the tape
13 recording of said proceedings and evidence, to the best
14 of my ability.
15 IN WITNESS WHEREOF, I have hereunto set my hand
16 in the City of Tampa, County of Hillsborough, State of
17 Florida, this 3 February 2009.
18 MICHAEL J. BORSETH, Court Reporter
19
20 ___________________________________
21
22
23
24
25

Wayward Lawyer Conduct During Depositions

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