Legal Question in Employment Law in California
I wanted to ask experienced lawyers an ethics question that may take you back to your ethics class, obtaining the opinions of other attorneys that practice law for a living.
I have an employment law case in Federal court where opposing cousel filed their initial disclores two weeks late, listed only the names of the witnesses and not what they would contribute, violating what is required, and then listed a witness, a former manager, as a current employee and represented by him when that witness had not been employed by the employer for some time (about 18 months). The opposing counsel also contacted this same witness and knew about her new employment and since he did not offer or she accept his counsel he was not representing her, even though he listed all of this false information on his initial disclore and attested to such by signing it-that the wittness was a curent employee and he represented her.
Later when this witness was served a notice to take a deposition, because I knew that she was not a current employee and she had advised me she was not represented by opposing counsel, he called and requested we not contact this witness and when we insisted we would since we could he then offered her his counsel to this witness and she accepted. My point is that he did not want me contacting her and when he listed her as a witness, current employee, and represented he knew this was not true when he attested to such by signing the initial disclosure as true and correct. No wonder attorneys get bad names with dirty tricks like this. Would I be likely to otain sanctions if I filed a motion? Or is this just common behavior among attorneys?
1 Answer from Attorneys
Welcome to the nasty world of employment litigation.
I won't say this is common behavior among attorneys. The majority of lawyers I have known over the years play by the rules and litigate cleanly, though vigorously. But we have all run into the type of scenarios you describe and it is extremely frustrating, time consuming and expensive. That is the point. Establishing the truth is not the issue. Some defense lawyers believe their job is to do anything they can to hide the truth, wear down the plaintiff and his or her attorneys and make life as miserable as possible. They know they have more money than we, to litigate, they want to distract with silly discovery battles and motions, they are rewarded for driving up their firm's billable hours and they want to convey the message to our clients and potential clients out there that they do not give in easily.
Will they be sanctioned for such behavior? Sometimes, but never enough. It depends on the judge. Some judges don't want to hear about it and have their court's precious time wasted on childish behavior. Other courts, probably more so in Federal Court, will sanction behavior that violates the rules of civil procedure.
But you have to learn to pick your battles. If their is a clear purpose to calling the attorney on it, fine, file your motion. Just try not to make it personal. The best reward is winning the war at the end, for your client.
Good luck.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
