Monday, July 13, 2009

In Petrilli Case its Golden v McNeill

I promise you…I know
[the motion for sanctions
against defense attorney
McNeill is] there…
I know of the concern
that I have regarding
personalities in this matter.

---Judge James Ishmael

Not being an attorney, I don’t really know the behavioral boundaries imposed on lawyers when witnesses are deposed. But I assume the rules of procedure anticipate that a witness should be able to testify without an inordinate number of interruptions. In Petrilli v Silberman the number of interruptions in a couple dozen depositions went well over 1,000. Seems like a lot to this layman.

I was deposed once. I was in a room with opposing counsel, and a court reporter. The attorney’s asked questions. I answered. From time to time an attorney would object to the form of a question, or some point of law, but my ability to answer the questions freely and honestly without an attorney telling me what to say was never abridged.

Reading the court records in Petrilli v Silberman leaves one with a very different feeling. I would not have wanted to be deposed in this case.

This is an old complaint. As early as September 2008, plaintiff’s attorney J Dale Golden was complaining about defense attorney John McNeill's alleged "rude," "abusive," "hostile" comments and exchanges like this:
Golden: "If you're instructing the witness not to answer, then you've got to assert a privilege and I'll ask you to do that."

McNeill: The privilege is that you're being a knucklehead by not answering my question...."
Golden asserted that McNeill was "writing answers down on a notepad and showing them to a witness for the witness to give that answer under oath."

Ishmael pleaded with the attorney’s at the time saying,
"Gee willikers, Fellas. You two guys are too good a guys; you two guys are too professional and experienced to be gettin' into this spittin' contest."
He even got $5 from his wallet and sent them across the street to get milkshakes and make up.

But apparently nothing worked. In the June 23rd pretrial hearing, Golden moved for sanctions against defense counsel.

Golden: If you will watch all of the video tape that we have given you…They walked out of that deposition- Mr McNeill was extremely abusive to Melissa [Thompson]. Extremely. We at the firm, talked about this, and looked at it, and we decided that we do not have any choice but to follow up on that at every avenue, starting here. And if you will look at that video tape…you will be absolutely shocked, and…we could give you fifty more examples. It’s abusive to the nth degree, judge…

I would love to hear what you would have to say about that, and what you would do if you were me, with your young attorney, and we had a summer clerk in there who had some serious questions about practicing law afterwards. You’ve got a court reporter and a stenographer in there. They are extremely uncomfortable. If you will just watch it, and I’d like to hold off discussion until you do…

[Our effort] has been completely frustrated throughout this entire matter. When I filed the original depositions… I challenge you; we counted well over 1,000 objections…I challenge you to open up any page in the whole stack of depositions …and see if you can turn just one page without a smart-alec, hateful, vile comment by Mr McNeill…

And judge, I was willing to let bygones be bygones after that first time that you spoke to us, and since then I’ve told him, ‘I’m going to go back to the judge and to the Court of Appeals’ [as a result of his] taunts, name-calling…and I would appreciate a ruling on that.

McNeill: [accused Golden of slandering his character and said] We know Mr Golden. The Court of Appeals knows Mr Golden, so I’m not that concerned about that.

Ismail: I have been busy in other trials….and frankly, haven’t had a chance to see it. I will be very frank with you. I’m not sure I’m going to take any action on this before the trial. I don’t want to disrupt the trial. We need to get this thing concluded, very badly… I promise you…I know it’s there…I know of the concern that I have regarding personalities in this matter.
So at some point, most likely after the trial, Judge Ishmael will have one extra chore: To render a decision on whether defense attorney John McNeill’s behavior warrants some kind of sanction. Regardless, Golden promises to elevate his complaint to the Kentucky Court of Appeals.

The combatants meet in open court beginning on Wednesday.

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