PRESIDENT ’ S Message
PRESIDENT ’ S Message
Taking the High Road
Rosalyn Sia Baker-Barnes 2017-18 PBCBA President
About five years ago , I was taking a deposition in a medical negligence case . After a tense exchange with the witness , the opposing lawyer began a rampage . First , raising his voice because , presumably , because he didn ’ t like how his witness was responding to questions . Then , he began with the non-verbal attempts to distractsnatching papers , slamming his notebook closed , and then continuing with deep sighs throughout the questioning . After more answers that were unfavorable to his case , he began to personally attack me , calling me names , standing up and pointing at me , and making every attempt he could to coach his witness . After multiple attempts to take the high road , I terminated the deposition .
In another deposition early in my career , it was the opposing lawyer questioning my young , African-American client . I had other depositions with this lawyer and was familiar with his style of questioning which seemed to be fine , but was quite surprised when he made it a point to refer to the decedent , my client ’ s mother , as his “ mama .” When I questioned why he chose that term to refer to the decedent , he became irate , yelling and making every attempt to intimidate my client . These are just a few examples of conduct that may not rise to the level of a bar complaint , but , is clearly inappropriate . In the first scenario , I was experienced enough to know how to handle the conduct , and ultimately , got relief from the Court . In the second scenario , however , I was a brand new lawyer , and was more shocked than anything that this kind of behavior was occurring .
As lawyers , we often refer to ourselves as professionals . We are trained in the letter of law , in counseling and advocacy , and specialists in the areas governed by our laws . But professionalism is much more than a piece of paper , a certification or designation . Professionalism does not mean wearing a suit or carrying a briefcase , and it applies to all professions and industries , not just lawyers . It is defined as carrying oneself with responsibility , accountability , integrity and excellence . We exhibit professionalism in how we carry ourselves , how we communicate with one another , and especially , how we handle ourselves when another lawyer is behaving unprofessionally . As a trial lawyer , I find that dealing with the unprofessional lawyers can be one of the more difficult challenges we face . I believe that female lawyers , particularly litigators , face these challenges more often than our counterparts . I am not referring to any study , but my own personal experience where I see clear differences in how lawyers , male and female , behave with men vs . women . Sometimes , the most difficult thing to do is ignore the conduct , and refuse to engage the lawyer . The line between protecting yourself , or your client , and maintaining professionalism sometimes becomes blurred , and many lawyers , especially young lawyers , have little guidance on the available remedies in these very tense situations .
But , there are ways that we can combat this behavior . First , take a deep breath and try to remind the lawyer about the importance of professionalism . I try to diffuse the situation and make a comment like , “ things are getting heated and we all have a job to do here . Let ’ s just slow down and get back to the questions and answers so we can complete this deposition today .” If it continues , ask the lawyer again to stop the behavior on the record , and then take a break . Still going on ? Warn the lawyer that if the behavior continues , you are going to terminate the deposition and seek Court intervention . If it continues , terminate the deposition and seek protection and sanctions from the Court , and be sure to provide the court with the transcript so that the recorded behavior
PBCBA BAR BULLETIN 4 is obvious . Finally , consider videotaping the deposition , especially for instances of nonverbal harassment , as that conduct cannot be reflected in the transcript . If you are not videotaping , be sure to bring the behavior to the lawyer ’ s attention on the record , state exactly what the conduct is , and ask the lawyer to stop .
Beyond the Court , we have an excellent local forum to address , in a remedial but not punitive fashion , lawyers ’ professional conduct . Our Local Professionalism Panel , established by the Florida Supreme Court ’ s Commission on Professionalism , evaluates complaints from lawyers and judges . If the complaint comes from a Judge , it is automatically reviewed by the panel . If it comes from a lawyer , the panel reviews the complaint , to determine whether it meets the criteria for review . Ultimately , the goal is not to punish , but educate lawyers about the importance of professionalism , identify improper conduct and give them the opportunity to correct their conduct so that it does not occur again . The goal is to curb this behavior before it becomes a bar grievance , and address the conduct at the local level , before it gets out of hand . The 15th Circuit Professionalism Panel Referral form can be found on the bar ’ s website . I also encourage you all to attend our bench / bar conference next month , which is an excellent resource for how to deal with this conduct , no matter what your area of practice is . Finally , if you find yourself in one of these tense situations , resist the temptation to fight and argue but rather , utilize the resources we have available to take the high road and maintain your professionalism .