Hinshaw reports this case in which the court sanctioned four attorneys for conduct at a deposition, including one who instructed his client not to answer outrageous questions but who neither claimed a protected privilege nor applied for a protective order under FRCP 30(d).

"The court described this case as a “grudge match.” Id. at *1. Harvey C. Welch represented Erik Redwood in a criminal prosecution for battery. Mr. Redwood was convicted, and blamed Mr. Welch for ineffective assistance of counsel. In October 1998 Mr. Redwood, a white man, called Mr. Welch, a black man, a “shoe shine boy,” which led to a physical confrontation. A grand jury returned an indictment for a hate crime against Mr. Redwood. In addition, Mr. Redwood filed a battery claim in state court and Mr. Welch filed a defamation counterclaim. In the civil action, Mr. Redwood was represented by his wife, attorney Jude Redwood, and Mr. Welch was represented by Marvin Gerstein. The civil case ultimately settled and the criminal prosecution was dismissed.

The Redwoods then filed this federal civil rights action against the prosecutor in the hate crime case, Elizabeth Dobson, as well as Mr. Welch, Mr. Gerstein, the City of Urbana and one of its police officers. The Redwoods alleged the defendants’ actions violated their first amendment rights by discriminating against Mr. Redwood’s religion.

The deposition became heated when Mr. Danner began questioning Mr. Gerstein about his past criminal record, his prior problems with the state bar, his mental health, whether he had engaged in homosexual conduct and whether he was involved in any type of “homosexual clique” with other defendants in this action. Id. at *4. Richard Klaus, representing Ms. Dobson, stated his opinion that Mr. Danner had committed a misdemeanor under Illinois law by asking questions about Mr. Gerstein’s mental health. Mr. Webber stated that the questioning violated Rule 30 because is was intended to harass, and instructed Mr. Gerstein not to answer. Mr. Webber did not, however, follow the procedure outlined in FRCP 30 by claiming a protected privilege or making a motion for a protective order.

Things got even worse after a break was taken and Mr. Gerstein was questioned about whether he had consulted with his attorney during the break. Mr. Gerstein began playing “word games” and claimed “amnesia” regarding what discussions he may have had or what the word “consult” meant. Although the court did not review a videotape of the deposition, the Redwoods claimed that Mr. Gerstein gave Mr. Danner “the finger” during the deposition as well. Id. at *4.

The court found Mr. Danner’s conduct at the deposition shameful. Id. at *5. The court, however, did not limit its criticism to Mr. Danner. “Mutual enmity does not excuse the breakdown of decorum that occurred at Mr. Gerstein’s deposition. Instead of declaring a pox on both houses, the district court should have used its authority to maintain standards of civility and professionalism. It is precisely when animosity runs high that playing by the rules is vital. Rules of legal procedure are designed to defuse, or at least channel into set forms, the heated feelings that accompany much litigation. Because depositions take place in law offices rather than courtrooms, adherence to professional standards is vital, for the judge has no direct means of control.” Id. at *5. "

Email this postTweet this postLike this postShare this post on LinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.