Saturday, April 13, 2013

Mullaney v. Aude case brief

Mullaney v. Aude case brief summary
126 Md. App. 639, 730 A.2d 759 (Ct. Spec. App. 1999)

Appellant attorneys challenged an order of the Circuit Court for Harford County (Maryland), awarding attorney fees incurred in obtaining a protective order against their adversarial use of gender bias in discovery. Appellants challenged the validity of the award, claiming it was imposed after a final judgment in the underlying tort action, their conduct did not warrant a protective order, and a procedural irregularity invalidated the award.

OVERVIEW: Appellant attorneys challenged sanctions imposed for discovery misconduct by them and their client, a male defendant in an action by a female plaintiff alleging he spread the herpes virus to her. In the midst of a deposition, one of the appellants made a derogatory remark about the plaintiff when she left the room to retrieve a document, and the remark led to various gender-biased insults directed at appellee, plaintiff's attorney. Appellee moved for protective orders based on the incident as well the defendant's alleged attempts to intimidate plaintiff's expert witness. The plaintiff was ultimately found contributorily negligent, and a judgment was entered for defendant. Appellants contended the sanctions were invalidly imposed after final judgment, their conduct did not warrant a protective order, and that a procedural irregularity invalidated the award.

Because of the procedural irregularity, the appellate court remanded without affirming or reversing the award, holding the award would have been properly imposed based solely on appellants' insults.

On remand, the lower court was ordered to consider whether the sanction was justified based only on the deposition conduct.

The absence of civility and respect exhibited by lawyers toward one another has been for years the subject of significant concern for bar and bench leaders. In the words of Judge Paul L. Friedman of the United States District Court for the District of Columbia: Although the "modern age" of the legal profession has witnessed progress in opening its doors wider to women and minorities and others who were previously excluded, this age has also opened its doors to the "Rambo litigator" that has spawned a generation of lawyers, too many of whom think they are more effective when they are more abrasive.

OUTCOME: Holding appellants' conduct properly formed a proper basis not only for a protective order, but for an award of attorney fees, the court remanded the case without affirming or reversing the award in order to allow the lower court to determine whether it based the award solely on appellants' conduct at the deposition, rather than on their conduct with respect to plaintiff's expert witness, which raised the procedural irregularity.

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