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  • May 13, 2020

    When Lawyers Push the Boundaries in Litigation

    From voir dire to depositions, lawyers make statements and ask questions in the litigation process knowing that they are improper, under the guise of “zealous advocacy.” The profession would benefit from putting an end to this practice, says Tom Donnelly.

    Thomas J. Donnelly

    For the last dozen or more jury trials I have had, there comes an inevitable moment where opposing counsel crosses the line of permissible voir dire, and starts to “try his/her case” through the jury panel.

    If it happened half the time it might be one thing. But it happens in literally every case I try.

    After asking if anyone thinks there are too many lawsuits or whether all chiropractors are inept (proper voir dire), counsel inevitably asks the jurors whether anyone thinks it is important for bus drivers to follow safety rules (or some variant of that question if my client happens to not be a bus driver).

    And every time, I ask for a sidebar and object to the line of voir dire, pointing out that the purpose of voir dire is to discern juror bias and that these questions do not further that end. And every time, the judge sustains the objection and tells counsel to move along.

    To paraphrase Ron Burgundy, 100 percent of the time such questioning is allowed zero percent of the time. I recognize that there is no great legal skill behind my string of successful objections cutting off counsel’s improper questioning at this stage of jury selection.

    It has dawned on me that it happens in every case.

    Crossing the Line of the Permissible in Voir Dire and Deposition

    The question isn’t really ‘why’ it happens. Nobody actually thinks this is proper voir dire. In all of the sidebars where this has come up, I can’t recall an instance where the judge has even asked for an argument in response from my opponent. I can’t even picture a scenario where we would go down that road, with a judge allowing counsel to ask a juror about their thoughts on the importance of safety.

    So, we can all agree that this is an improper line of voir dire questioning. And yet the question seems to come in every trial.

    Again, my question is not why counsel does this. I know they are asking the question for the sake of asking the question. My issue is whether we, as a profession, should take steps to prevent questioning known to be improper.

    Tom Donnelly Tom Donnelly, Marquette 1995, is an associate with Grady, Hayes & Neary LLC in Waukesha, and has practiced for 24 years in civil litigation.

    This principle does not apply just to voir dire. Take depositions. It would not be too great a stretch to say that, when your client or expert is being deposed, there are two types of lawyers on the other side doing the questioning – those who you know are going to ask fair and appropriate questions, and those who you know are going to analyze every word of every single question because a not insignificant percentage of the questions will be objectionable.

    It’s likely you are acquainted with litigators in both categories: those whose questions you will never have to object to, and those that you know will make you exit the deposition mentally exhausted from analyzing every word.

    Those in the second category ask the same question multiple ways, littered with argument, unquestionably attempting to confuse, badger, or bait the witness. I can’t count the number of times I have told clients that trial will actually be much less stressful than deposition, because the attorney will not be able to get away with the same antics in front of the judge.

    And with that second category of opponent, simply sitting silently, relying on the idea that all objections except to form are preserved doesn’t work in practice. If you let that second category of attorney go unchecked, it will not end well, unless your witness is experienced at being deposed.

    Some might say (as with the voir dire example above) “that’s just zealous advocacy.” Maybe. I guess the thought process is that you should try to get away with as much as you can until somebody stops you.

    The problem I have with that logic is – does that mean that’s what we all should do? Should I ask questions in voir dire or at deposition that I know are not proper, to gain a tactical advantage? Should I ask jurors whether there is anyone on the panel who thinks it’s OK to make a claim when they aren’t really injured? (I will never get that chance, because by the time I am up, I just finished objecting to those types of questions from plaintiff’s counsel).

    My point is that, if we allow this type of questioning (getting away with as much as you can, even though you know the questioning isn’t proper, under the guise of zealous advocacy), then it’s hard to argue against the notion that everyone should use that strategy and that they should do so all the time.

    Moving Toward Fair and Appropriate

    I would like to see us as a profession move away from this “anything goes” model and toward questioning that is fair and appropriate.

    For one, I think it will help our appearance as a profession with the public, since trials and depositions are two arenas where we interact with the public and have a great opportunity to impact (positively or negatively) how the public thinks of us. Too many people have had unnecessarily bad experiences with lawyers in an adverse litigation setting.

    I also think we as litigators would benefit from reduced mental strain as a result of saving argument for closing and keeping it out of depositions and voir dire.

    As for how this would occur, I believe judges would have to play an active part, certainly at trial, but also with specific provisions in scheduling orders. It would not hurt to have a few more specific rules (as in the case of the voir dire example).

    Finally, lawyers would have to police themselves and train younger lawyers in their firm on the importance of the fair and appropriate style.

    This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.


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