Monthly Archives: March 2008

The Seven Aphorisms go to Washington

The city of Pleasant Grove, Utah rejected a request by the Summum religion to allow placement of a privately funded monument bearing the religion’s “Seven Aphorisms” in a public park despite the fact that the park already contained other religious monuments, including one of the 4,000 or so Fraternal Order of Eagles Ten Commandments monuments that litter public parks and courthouse lawns throughout the nation. Summum filed suit against the city, asserting that content-based discrimination in a public forum violated the Speech Clause of the First Amendment.

As I reported here, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit sided with Summum and the petition for an en banc rehearing failed on a 6-6 vote.

Today the U.S. Supreme Court agreed to hear the case. According to SCOTUSblog, the issue is:

Whether, under the First Amendment, privately donated monuments placed in a public park qualify as private or government speech.

H/T – Religion Clause

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i has a eskort surviss

Judge Edward Nottingham, Chief Judge of the U.S. District Court for the District of Colorado, has been up to his neck in allegations of bad, bad stuff for the better part of a year. Earlier this month a local teevee station reported that the U.S. Court of Appeals for the Tenth Circuit was investigating allegations of judicial misconduct for the third time in during that relatively short span. This investigation centers on hooker boinking:

He is being investigated for improper judicial conduct after his full name and personal cell phone number appeared on a list of clients from a Denver prostitution business.

The business called Denver Players or Denver Sugar was shut down in January after IRS and Denver Police investigators served search warrants at the brothel on Fillmore Street.

. . .

A man who had been hired to drive Denver Players prostitutes to meet clients, including Nottingham, talked exclusively to 9Wants to Know.

. . .

The driver told 9NEWS he took prostitutes to meet Judge Nottingham at two locations in the Denver area about 10 times during the summer of 2007.

The driver says the prostitutes would mention Judge Nottingham by name before and after their appointments with him and frequently referred to the judge by his nickname: “Naughty.”

This is but the latest in series of troubles. Last summer, Judge Nottingham and his wife of three years got divorced. During his deposition in the divorce case his honor acknowledged dropping $3,000 at a titty bar over the course of two nights and being too drunk to recall exactly how he spend the money. Judge Nottingham’s formal statement back then read:

Judge Nottingham believes the underlying issues raised by Channel Nine News are private and personal matters involving human frailties and foibles, matters which have now become public as a result of protracted, bitter divorce proceedings. Judge Nottingham has attempted to deal with the issues privately, and he will continue to do so. No purpose would be served by exploring these matters publicly.

A couple of months after the strip club revelation, a lawyer who’s been paralyzed since 1986 as the result of being shot by a divorce client’s angry husband filed a complaint against the judge. Seems the lawyer took Judge Nottingham to task for parking his SUV in a handicapped-only space. The judge identified himself, flashed his identification, and threatened to call U.S. Marshals on the lawyer.

Senator Ken Salazar (DINO-CO) — whose first act after assuming office was introducing the liar Alberto Gonzales, then Bush’s nominee to replace John Ashcroft as Attorney General, to the U.S. Senate — is beside himself with concern over the escort service allegations:

“I am very troubled by recent allegations made against Chief Judge Edward Nottingham,” Salazar said. “I believe that a United States district court judge should serve in an exemplary manner, both on and off the court.”

There may be a bit of a schadenfreude/ what-goes-around-comes-around thing at work on Sen. Salazar’s part:

Salazar has known Nottingham for many years.The two worked on cases together at the Denver law firm of Sherman & Howard, when Nottingham was a partner and Salazar was an associate.

Lesson for law firm partners: Be kind to associates; you never know which ones will end up in the Senate.

Salazar also vows to “examine the evidence concerning the allegations and then decide what future action might be appropriate.” Wow! Shades of the When You Wish Upon A Star press conference that Al Haig gave shortly after John Hinckley shot Ronald Reagan!

The Circuit Executive for the Tenth Circuit Court of Appeals handles discipline of federal trial court judges in this here part of the country, and the impeachment of federal judges is the House of Representatives’ bailiwick. In either case, “decid[ing] what future action might be appropriate” ain’t Ken Salazar’s job. Well, at least he isn’t Pete Coors.

In any event, there’s surely many unseemly miles still to travel before the Nottingham saga sleeps. Stay tuned!

Hall St. v. Mattel: Least necessary SCOTUS decision ever?

Hall Street Associates, L.L.C. v. Mattel, Inc., which the U.S. Supreme Court decided on Tuesday, provides a rather striking example of apparent attorney myopia leading to appellate courts ruling on issues that never should have been presented in the first place.

In many instances, agreements to arbitrate civil disputes are very good things.[1] Arbitration tends to be simpler, quicker and cheaper than resolving disputes via formal litigation. Typically, parties to a contract who want to avoid litigation will include a provision in the written agreement to the effect that any dispute arising under or relating to the contract will be submitted to one or more private arbitrators, selected by the parties, for final and binding resolution.

Back in the day, courts were openly hostile toward private arbitration contracts, so much so that they regularly refused to enforce them. In 1920 the state legislature of New York passed legislation aimed at compelling judicial enforcement of such agreements. Congress followed suit in 1925 with the Federal Arbitration Act (“FAA”), codified at 9 U.S.C. §§ 1-16.

There’s at least one gargantuan risk inherent in arbitration, namely the risk of getting royally screwed over and having no recourse. Arbitrators’ decisions aren’t enforceable all by themselves. If the loser at arbitration refuses to comply, the winner can petition a court for an order confirming the arbitration award. At that point the arbitrator’s decision becomes a court judgment and is enforceable as such.

The FAA provides that a court “must” confirm an arbitration award unless grounds for vacating, modifying or correcting the award exist. 9 U.S.C. § 9. A court may vacate an arbitration award only if: “the award was procured by corruption, fraud, or undue means”; the arbitrator(s) exhibited “evident partiality or corruption”; the arbitrator(s) committed “misconduct” in the form of improperly refusing to postpone a hearing or refusing to consider relevant evidence; or the arbitrator(s) engaged in “other misbehavior” that prejudiced a party’s rights. 9 U.S.C. § 10. A court may “modify[] or correct[]” an award only if the arbitrators: were guilty of “evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award”; decided “a matter not submitted to them”; or issued an award “imperfect in matter of form not affecting the merits of the controversy.” 9 U.S.C. § 11.

Glaringly absent from the statutory grounds for vacating, modifying or correcting an arbitration award is any provision authorizing a court to correct an arbitrator’s errors of law and/or law application. As the courts have interpreted §§ 10 and 11, such authority is either nonexistent de jure or so ridiculously limited as to be nonexistent de facto.

Therein lies the crap shoot. All too many people who do arbitrations are blithering idiots, and even the very best can make egregious errors of law from time to time. In those cases, the aggrieved party most likely stuck with the arbitrator’s flat-wrong decision thanks to the FAA’s severely restricted rules of judicial review, which are binding on trial courts and appellate courts alike.

Hall St.‘s facts evidence nothing of what’s good about arbitration. Hall St. Associates owned property in Oregon that Mattel leased and used as a manufacturing facility. The lease, which apparently did NOT contain an arbitration clause, provided that Mattel would indemnify Hall St. for any damages arising from the failure of Mattel or predecessor lessees to comply with applicable “environmental laws”. A state agency discovered chemical contaminants on the property, apparently the result of activities conducted by Mattel’s predecessor lessees.

Mattel gave notice of lease termination in 2001. Hall St. responded by filing suit in an Oregon state court: (1) contesting Mattel’s right to terminate the lease; and (2) seeking indemnification for cleanup costs. Mattel removed the case to federal court. The issues were bifurcated and following a bench trial the court ruled in Mattel’s favor on the termination question.

Three years into the litigation, the parties agreed to resolve the indemnity issue via binding arbitration. The trial court approved the parties’ agreement, which included the following provision:

The United States District Court for the District of Oregon may enter judgment upon any award, either by confirming the award or by vacating, modifying or correcting the award. The Court shall vacate, modify or correct any award: (i) where the arbitrator’s findings of facts are not supported by substantial evidence, or (ii) where the arbitrator’s conclusions of law are erroneous.

The stipulated standard of judicial review is much broader than that laid out in the FAA. The arbitrator’s findings of fact were subject to “substantial evidence” review, and the parties gave the court plenary power to vacate “erroneous” conclusions of law. That, in essence, is de novo review.

The arbitrator found for Mattel based on the rather boneheaded conclusion that the Oregon Drinking Water Quality Act, the applicable substantive law, wasn’t an “environmental law” for purposes of the lease’s indemnity clause because the statute dealt with human health as opposed to environmental contamination (as if the two were mutually friggin’ exclusive). The trial court, applying the parties’ agreed-upon standard of judicial review, vacated the award. The arbitrator issued a new award, this time for Hall St., based on the trial judge’s conclusion that the Oregon statute at issue qualified as an environmental law.

After much procedural wailing and gnashing of teeth, the U.S. Court of Appeals for the Ninth Circuit held that the parties’ agreement for expanded judicial review of the arbitration award was unenforceable. FAA §§ 10 and 11 provide the exclusive grounds for messin’ with an arbitration award, the Ninth Circuit ruled, and agreements purporting to expand those grounds to include review for substantive legal error are null. The court of appeals ultimately sent the case back to the trial judge with instructions to confirm the original arbitration award for Mattel unless statutory grounds for vacatur, modification or correction existed.

Awhile back I blundered across several trial court and Ninth Circuit opinions in Hall St. while doing research for a rather contentious arbitration dispute my boss was involved in. I also found the U.S. Supreme Court’s order granting certiorari (pdf, 1 page) on the issue:

Did the Ninth Circuit Court of Appeals err when it held, in conflict with several other federal Courts of Appeals, that the Federal Arbitration Act (“FAA”) precludes a federal court from enforcing the parties’ clearly expressed agreement providing for more expansive judicial review of an arbitration award than the narrow standard of review otherwise provided for in the FAA?

After reading the lower court opinions and the cert order, I couldn’t help but ask myself, “How in the mule-fellating hell does this case have ANYTHING to do with the FAA?” After all, there was no arbitration clause in the lease, a fact that rendered irrelevant the FAA’s requirement that courts enforce arbitration agreements. And the stipulation to arbitrate came three years into a contentious and no doubt exceptionally expensive lawsuit, which pretty much forcibly buggers the public policy of encouraging quick and economical dispute resolution via arbitration.

More important, the parties agreed to arbitrate in the course of ongoing litigation and submitted the agreement to the court, which entered an order approving it. Under those circumstances, why isn’t the order approving the stipulation enforceable as a case management order per Rule 16 of the Federal Rules of Civil Procedure? The order approving the parties’ agreement also appears enforceable under the federal Alternative Dispute Resolution Act.

I was more than a little skeeved to discover that a Shrub appointee, Chief Justice Roberts, expressed a similar concern during oral argument. The Chief wondered whether the agreement for expanded judicial review was enforceable as a simple matter of “state contract law,” regardless of what the FAA had to say. That concern raised enough eyebrows that the Court ordered additional briefing on the issues:

(1) Does authority exist outside the Federal Arbitration Act (FAA) under which a party to litigation begun without reliance on the FAA may enforce provision for judicial review of an arbitration award?

(2) If such authority does exist, did the parties, in agreeing to arbitrate, rely in whole or part on that authority?

(3) Has petitioner [Hall St.] in the course of this litigation waived any reliance on authority outside the FAA for enforcing the judicial review provision of the parties’ arbitration agreement?

SCOTUS ultimately decided only the issue originally presented to it, holding (6-3) that parties may not alter by agreement the grounds set forth in FAA §§ 10 and 11 for vacating, modifying or correcting an arbitration award. The Court punted on the supplemental briefing issues, shipping the case back for consideration of whether any non-FAA basis for enforcing the agreement exists and, if so, whether Hall St. waived its right to rely on any such basis by not raising it in the trial court.

Professor Sarah Cole of Ohio State’s Moritz College of Law provides some interesting and incisive commentary on Hall St. here and here. Professor Cole opines — correctly, IMO — that Hall St. officially kills most nonstatutory bases for vacating an arbitration award mentioned in federal court decisions (“totally irrational,” “public policy” and “arbitrary and capricious”). She also has some interesting commentary regarding the fate of the Court’s [in]famous “manifest disregard” of the law dictum from Wilko v. Swan, 346 U.S. 427 (1953), overruled on other grounds, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989).

For me, though, Hall St. is noteworthy not so much for the ruling but for how it got to SCOTUS in the first place. In moving to vacate the original arbitration award, Hall St.’s lawyers rode their best horse, namely the agreement allowing full review for legal errors. By way of opposition, Mattel rode its best horse, namely the argument that the FAA supplies the exclusive grounds for vacating an arbitration award. From that point on, everyone (courts and lawyers alike) focused exclusively on what the FAA does or doesn’t allow. The participants appear to have looked right past an argument that, to a procedure geek at least, jumps off the page and to my eye looks like a slam dunk for Hall St., namely that the court-approved stipulation is enforceable independent of the FAA per the ADR Act and Civil Rule 16.

Would the petitioner have won in the lower courts had its attorneys not developed FAA tunnel vision? There’s no way to tell, of course, but I suspect so. In that event, this case likely wouldn’t have aroused much interest from SCOTUS at all, certainly not the four votes worth of interest required for a grant of certiorari.

As matters now stand, though, there’s a substantial likelihood that Hall St. will lose. The lower courts are surely anxious to be done with this case, which renders Mattel’s chances of succeeding with a waiver argument on remand pretty damn good.

Lesson for n00b lawyers (all lawyers, for that matter): never let the other side dictate the terms of the debate. Analyze the issues. Look hard for alternative arguments. They’re there. If you can’t see any alternatives yourself, get help. Consider the alternatives thoroughly before rejecting them.

[1] I’m speaking here of real arbitration agreements, the sort reached as the result of arm’s length bargaining among parties of relatively equal strength. Arbitration clauses slipped into credit card agreements or insurance policies that the customer sees only after signing up are a whole ‘nother kettle o’ fish.

The rough-and-tumble world of judicial politics

As some of you know, there’s a rather brutal Wisconsin Supreme Court campaign under way involving incumbent Justice Louis Butler and Judge Michael Gableman of the Burnett County Circuit Court. The election takes place on Tuesday, April 1, and things are downright incendiary.

Having spent the first forty-five years of my life in Ohio, another state in which judges are are chosen via head-to-head elections, I can say with some confidence that state supreme court races ain’t what they used to be. In fact, such elections were true yawners once upon a time.

Then came tort “reform.” Chambers of commerce, manufacturers’ associations, insurance companies and various front groups pretending to represent concerned citizens found that, for surprisingly little money, they could purchase corporate legislation that severely restricted access to the civil justice system and severely restricted recovery for those who could obtain access. Result: the proponents of such legislation keep more of their treasure.

The fly in state tort “reform” legislation ointment was state courts. Most state constitutions (not Colorado’s, sad to say) confer a right to trial by jury in civil cases. Some state supreme courts, though by no means all, take those provisions — along with equal protection, due process and separation of powers principles — quite seriously. Result: in some states, components of tort “reform” legislation get shot down as unconstitutional.

Excising that fly from the precious, precious ointment of tort “reform” involves stacking the state supreme court with “pro-business” jurists, i.e., judges who aren’t really judges at all but rather business interest hacks. In states with head-to-head judicial elections, that essentially means buying supreme court seats.

And oh, how the money and shit do fly.

How do you convince the electorate to throw out an incumbent supreme court justice with an exemplary record of public service and qualifications on top of qualifications?

You lie. You lie and lie and lie.

The insurance industry and chambers of commerce care not a suppurating boil on a baboon’s left buttock about crime. They care about money, making it and keeping it. But, so they figure, the average voter cares a great deal about crime. That’s your hot button issue right there! Wanna defeat a sitting supreme court justice? Spend millions on advertising that portrays the incumbent as “soft on crime.”

So it is in the Wisconsin race. Various special interest groups and online Republican howler monkeys are advancing the contention that Justice Butler “voted in favor of criminals” in some sixty percent of cases coming before the Wisconsin Supreme Court during his tenure.

Unsurprisingly, the contention is bullshit. But exposing bullshit as bullshit is much easier said than done in many cases. The requisite effort generally ranges from herculean to heroic, and not many are willing to travel that road.

Enter my main man illusory tenant, whose outstanding blog is pretty much “all Butler-Gableman all the time” these days. I highly recommend that all y’all Wisconsinites tune in and enjoy the show as iT dissects, exposes and summarily executes every lie that falls from the dissembling pens of the Gableman campaign and its odious allies, including but not limited to the 60% claim.

Few have both the willingness and the mad, mad skills needed to perform such a valuable service. Fortunately for Wisconsinites, iT is one of those few.

No Mulligan for Michigan

The New York Times reports that the Michigan legislature adjourned yesterday with acting on a bill that would have authorized a new Democratic presidential primary in that state. Michigan is one of the locales (along with Florida) in which the state Democratic party lopped off its own nuts by holding a presidential primary earlier than Democratic National Committee regs allowed.

The legislature’s inaction is a swift kick in the crotch for Gov. Jennifer Granholm, a staunch Hillary Clinton supporter who lobbied hard for the now-moribund bill. Rich Clinton supporters had offered to pick up the tab for a new primary, but that wasn’t enough to overcome the opposition.

Gov. Granholm says she’ll now turn to “other options” for getting Michigan delegates seated at the Democratic National Convention. What those options might be is anyone’s guess. People keep talking about an “impasse” and a “controversy” and an “issue,” but no such critters exist here so far as I can tell. The DNC still says that the Michigan delegation is out, and rightly so IMO. Of course, that doesn’t mean that Dean & Co. won’t cave later in the game.

For now, Michigan Democrats’ remedies appear limited to tarring and feathering the shitheaded state party leaders who purposely defied the DNC based on a patently idiotic belief that the national party simply wouldn’t do what it said.

11th Circuit affirms dismissal of lawsuit challenging DNC’s decision not to seat Fla. delegates

By now pretty much everyone knows that the Democratic National Committee stripped Florida of its delegates to this year’s national convention in Denver based on the Florida Democratic Party’s flagrantly mutton-headed decision to hold its primary earlier than DNC rules allowed. What isn’t generally known is that a Florida Democratic voter sued over it.

Back in August 2007, Victor DiMaio filed suit in federal court seeking a declaration that the DNC’s action violated his voting rights under both the Equal Protection Clause of the Fourteenth Amendment and Article II of the U.S. Constitution. The trial judge dismissed the case for lack of jurisdiction, finding that Mr. DiMaio lacked “standing” to make the challenges asserted in his complaint. The judge ruled in the alternative that the complaint lacked merit because the DNC is not a “state actor” and political parties have a constitutionally protected right to manage their own internal affairs.

Today the U.S. Court of Appeals for the Eleventh Circuit affirmed on standing grounds. DiMaio v. Democratic Nat’l Comm. (pdf, 9 pages). What the hell does that mean? In a nutshell, Article III, Section 2 of the Constitution says that the “judicial power” of federal courts extends to “cases” and “controversies.” Federal courts have long held that the “cases” and “controversies” language includes a requirement that a person must have a legally sufficient stake in the outcome of a dispute before invoking a federal court’s jurisdiction. In other words, the plaintiff must have “standing.”

The easy-to-recite, substantially-more-difficult-to-apply test for standing provides that the plaintiff in a federal court case must meet three requirements:

First, the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be   causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

DiMaio’s complaint — a shining example of piss poor legal drafting, if the Eleventh Circuit’s description is correct — didn’t come close to making the grade. First and foremost, the complaint never alleged that Mr. DiMaio voted or even intended to vote in the Florida Democratic Primary. Instead, “the complaint simply ‘posit[ed]’ that the DNC ‘may be violating his rights under Article II and the 14th Amendment of the United States Constitution’; that enforcement of the DNC’s delegate-stripping rules ‘may or may not violate [his] right to vote in a Presidential primary’; and that, ‘[i]f the decision of the National Party violates [his] constitutional rights, it would be appropriate for this court to make such a finding.'” (Emphasis original.)

FAIL.

The court of appeals affirmed the trial court’s dismissal on standing/jurisdiction grounds, but vacated the lower court’s alternative ruling on the merits. After all, a court has no business deciding a case on the merits if it doesn’t have subject matter jurisdiction to begin with.

The Eleventh Circuit also noted that a jurisdiction-based dismissal is necessarily “without prejudice,” meaning that the plaintiff can file the lawsuit anew. We haven’t heard the last of this case, as Mr. DiMaio plans to refile.

(Whereupon there is screaming.)

It’s a banner day for news of profanity during legal proceedings. The good folks at Above the Law bring us this transcript (pdf, 13 pages) of an abortive sentencing hearing conducted on March 11 in the U.S. District Court for the Eastern District of New York.

Already in the courtroom was Assistant U.S. Attorney Carolyn Pokorny, who represented the government. The defendant, one Victor Wright, entered the courtroom accompanied by his lawyer and two deputy U.S. marshals. Let the hijinks begin:

(Whereupon the defendant turns towards Ms. Pokorny
and attacks her.)

(Whereupon there is screaming.)

Court reporter Ronald Tolkin, who later transcribed the proceedings from an audiotape, entered the fray immediately and with considerable gusto:

COURT REPORTER: You cock sucker get off of her. Get off of her. Get off of her. You cock sucker get off of her.
U.S. MARSHAL ALVAREZ: Get off of her.
COURT REPORTER: I will beat the shit out of you, you motherfucker. You cock sucker. Who the fuck do you think you are?
U.S. MARSHAL ALVAREZ: Get off.
COURT REPORTER: Try it on me, man. I’ll kick you in the fuckin balls.
U.S. MARSHAL ALVAREZ: Get off her.
THE DEFENDANT: I apologize.
COURT REPORTER: You apologize, you piece of shit.
U.S. MARSHAL ALVAREZ: Get off of her.
THE DEFENDANT: They are choking me.
COURT REPORTER: You fuckin put your hands behind your back, you cock sucker.

And on it goes. Above the Law assures us that the repeated references to “pushing it in” have nothing to do with forcibly sodomizing the defendant as punishment for attacking the prosecutor. Apparently they’re talking about the courtroom panic button.

Lynndie England: Media killed thousands by publishing pics of me torturing prisoners

Remember Lynndie England of Abu Ghraib prisoner torture scandal fame? Well, she’s back and more fucked up than ever.

Seems England gave an interview to the German weekly news magazine Stern earlier this week. USA Today reports on the interview here.

I truly wish the title of this entry were an exaggeration. It isn’t.

According to Lynndie, the problem isn’t what happened at Abu Ghraib. That kinda shit happens in war all the time behind the scenes. The problem, Lynndie says, is that media reported it. That act enraged the insurgents and cost thousands of lives:

“I guess after the picture came out the insurgency picked up and Iraqis attacked the Americans and the British and they attacked in return and they were just killing each other. I felt bad about it … no, I felt pissed off. If the media hadn’t exposed the pictures to that extent, then thousands of lives would have been saved,” she was quoted as saying.

Asked how she could blame the media for the controversy, she said it wasn’t her who leaked the photos.

England, now free after serving half of a thirty-six month sentence imposed by a court martial, is “living with her parents in Fort Ashby, W.Va., along with her son, Carter, whose father is Charles Graner Jr., the reputed ringleader of those who took the pictures.” With any luck, the local child protective services agency will catch wind of Lynndie’s recent comments and take action in the best interest of the child. The boy doesn’t stand a snowball’s chance in hell of growing up even marginally human as matters currently stand.

Hit That Fuckin’ Clown

GMAC Bank v. HTFC Corporation (pdf, 44 pages) is but a drop of water in the raging river of commercial litigation that runs through the federal trial courts. Or at least it was just a drop of water until plaintiff’s counsel tried to depose the defendant company’s owner/CEO.

HTFC Corp. is a “mortgage investor.” It takes loan applications and sells loans to lenders. GMAC Bank, which administers residential mortgages, contracted to buy a bunch of residential loans from HTFC. GMAC sued HTFC in federal court for breach of contract, alleging that loans at issue weren’t properly underwritten and were not “investment quality,” whatever the hell that means. HTFC filed a counterclaim for tortious interference with contract and the case proceeded.

Agonizingly boring stuff, right? Well, hang on a second, Cochise. It gets better.

Depositions are an integral part of any civil case. I can’t even count the number I’ve been involved in over the years. They generally take place at the office of a lawyer involved in the case. The lawyers get together in a room with a court reporter and a witness. The lawyer who initiated the deposition then gets information from the witness via question and answer. The court reporter transcribes the goings-on. In that respect, the process is not unlike trial testimony. In depositions, though, the atmosphere is generally much looser and subjects of proper inquiry much broader than in a courtroom. Moreover, Jones v. Clinton notwithstanding, there’s almost never a judge present.

So it was when counsel for GMAC deposed Aaron Wider, the owner and CEO of HTFC. As is typical these days, the deposition was both transcribed and videotaped. My boss has been videotaping his depositions for many years based on his belief that the presence of a camera tends to make the witness behave better.

Not so in Mr. Wider’s case. The deposition was a two-day, twelve-hour affair during which the witness exhibited explosive potty mouth on a near biblical scale. Among the highlights:

Q. [T]his is your loan file, what do Mr. and Mrs. Fitzgerald do for a living?
A. I don’t know. Open it up and find it.
Q. Look at your loan file and tell me.
A. Open it up and find it. I’m not your fucking bitch.
Q. Take a look at your loan application.
A. Do it yourself. Do it yourself. You want to do this in front of a judge. Would you prefer to [do] this in front of a judge? Then, shut the fuck up.
Q. Sir, take a look–
A. I’m taking a break. Fuck him. You open up the document. You want me to look at something, you get the document out. Earn your fucking money asshole. Isn’t the law wonderful. Better get used to it. You’ll retire when I’m done.

. . .

Q. And you have a hard time comprehending. We’re going to adjourn this deposition if this happens again because you are offending every single person.
A. Don’t speak for anybody in here except yourself fuck face.

. . .

Q. What we can do is we can have this deposition in front of a judge.
A. We can do that.
Q. And the judge can–
A. Let’s do that.
Q. No, no. We’re not going to–
A. Let’s do that; this way he can rip your ass out.
Q. We’re not going to do that, sir, okay.
A. Then don’t fuckin’ threaten me, asshole.
Q. Well, sir, I would appreciate it if you would control your language in light of the people that are present in the room and I would appreciate it if you would be a little more courteous, okay.
A. I’m very courteous.
Q. Okay. Now–
A. Let’s go in front of a judge and shut up.
Q. Sir–
A. Shut your mouth.

. . .

Q. Well, do you know the purpose for these transactions?
A. Why the fuck would I know that?
Q. I’m just asking you whether you know.
A. Why the fuck would I know that?
Q. I’m asking whether or not you know that.
A. It’s got nothing to do with the transaction. Don’t ask stupid questions. Ask smart questions.

. . .

Q. Are you very pleased with yourself, sir?
A. Yes, I am.
Q. Because you’re trying to perpetrate a fraud and hide it?
A. Go fuck yourself, Bob. Now, you’re going to have to wait.
Q. Sir, if you keep walking out–
A. Shut the fuck up.
Q. Here we go again.
A. I have a business to run.
Q. You don’t have a business to run. You have a deposition.
A. Shut the fuck up. Don’t tell me what to do. You sit there. You’re on the payroll. You can sit there and juice your client; you’re not juicing
me. [Wider leaves the room.]

. . .

Q. Is it just a coincidence Mr. Petinton was involved as the Trustee in connection with both of thoseTrusts?
A. It’s not a coincidence that I’m a genius at what I do. I obey the law and live the law. You practice the law. Sir, I’m not going to be interrupted while I am speaking. I live the law. You serve the law. You practice the law. I abide by the law and enforce the law to the fullest extent the law allows. The only difference between you and I is I have a pair of balls and you don’t. The only difference between the average person [and me] is I have a pair of balls and they don’t. You think it’s funny. I’m not the one chasing $15 million ass wipe.

My personal favorite exchange arose from Mr. Wider repeatedly calling plaintiff’s counsel a “fucking clown.” Against that backdrop the following delightful exchange occurred:

Q. Okay. You’re not employed by HTFC Corporation?
A. No, I own HTFC Corporation. Be specific.
Q. Okay. And what do the initials HTFC mean?
A. Hit That Fuckin’ Clown. That’s what it means. It’s an acronym.

The trial judge (or more likely his clerk) actually counted the cuss words and discovered that “Wider used the word ‘fuck’ and variants thereof no less than 73 times.” By contrast, the word “contract” appears but fourteen times in the entire transcript.

In the end, the judge sanctioned Mr. Wider and HTFC’s counsel — jointly and severally — to the tune of $29,322.61 in attorney fees and costs. Defense counsel’s liability was based primarily on his failure to keep Wider under control, but the court also noted that at least one point Wider’s antics had defense counsel snickering on the record.

Hit That Fuckin’ Clown’s website is available here. I double dog dare anyone to incur Mr. Wider’s wrath by stealing that super-cool money graphic on the right side of the page.

Update: Please don’t waste your time clicking on the HTFC website linked above. The link now takes you to the website of some IT company called Blue Lion Solutions. Boring, very boring.