When Tempers Flare: Liability Arising from Deposition Fight?

Litigation can get heated. Tempers may flare when the stakes are high and the result can be contentious exchanges amongst counsel. Sure, the adversarial nature of litigation is to be expected (and welcomed by some practitioners), but there is a line in the sand. Some cross that line and make things personal. What to do when things spiral out of control? Can insults form the basis for a separate suit amongst counsel?

The New York Appellate Division considered this issue and concluded that a particularly tense exchange amongst counsel during a deposition did not establish civil liability. In Okoli v. Paul Hastings, LLP, 2014 N.Y. App. Div. LEXIS 3531(May 15, 2014), an attorney pursued a slander and civil assault claim arising from “menacing conduct” during a deposition. The plaintiff alleged that during the deposition the defendant made defamatory statements and also engaged in yelling and finger-pointing.

The trial court dismissed the plaintiff’s claims and on appeal the Appellate Division for the First Judicial Department affirmed. The Appellate Division concluded that the trial court properly dismissed the slander claim under the litigation privilege. Finding that the defamatory statements were made during the course of a judicial proceeding and that they could be considered pertinent to the case, the court concluded that the defendant attorney was immune from liability for his conduct.

The Appellate Division also rejected the plaintiff attorney’s civil assault claim. The court found that the physical conduct alleged which included finger-pointing and generalized yelling in the context of a deposition, while inappropriate, was not the type of menacing conduct that might give rise to a reasonable apprehension of imminent harmful conduct needed to state a cognizable claim of assault. Accordingly, the court dismissed the plaintiff’s claims.

Although the court explicitly noted that it did not condone the conduct, these types of hostile exchanges are not uncommon. Thus, when the temperature rises, attorneys must maintain composure and keep it professional. Even though the questionable conduct might not form the basis of a lawsuit, it could result in ethical implications and could ultimately be detrimental to the client’s case.