You are only allowed to swear once in deposition — at the start and to God. This is a lesson being taught to New York mortgage company owner, Aaron Wider. Federal Trial Judge Eduardo Robreno hit Wider with a $29,323 fine for swearing 73 times in the deposition, shown in an excerpted video below. This is however not unique as the other video below from a different case indicates.
Calling it a “spectacular failure,” show Wider using a certain four-letter word that begins with f and sounds like duck. He does an impressive job in using the word as a noun, adjective, verb and on one occasion appears to approach that long-sought goal in New York and New Jersey of a preposition based on the four-letter word. Most of this creative profanity was directed at opposing counsel Robert Bodzin of Philadelphia.
Even when asked what the initials of his company HTFC Corp meant, Wider replied:
“Hit That F***ing clown,” the 43-year-old chief executive officer said. Considered an he adjectival use of fuck is found almost exclusively on the highways between New York and New Jersey. Indeed, I believe that such usage would be viewed as strictly an “idiom” or “an expression, that is a term or phrase whose meaning cannot be deduced from the literal definitions and the arrangement of its parts, but refers instead to a figurative meaning that is known only through common use.” Click
But I digress, In the lawsuit, GMAC Bank of Philadelphia is suing HTFC on breach-of-contract allegations for selling millions of dollars in improperly secured home loans.
Wider claims profanity to be a “constitutional right” and called the judge’s action “censorship.” While there is no express “profanity clause,” Wider can point to the historic references to swearing. Indeed, Article II, Section 1 actually requires the President to “swear” “[b]efore he enter on the execution of his office.”
Wider appears to be just a little crazed about his role. Indeed, he seems to view himself as the Thomas Paine of Profanity: “I will go down in history as someone who defied the federal government. . . . I have defied one man who comes from a communist country . . . If he told Fidel Castro to go [bleep] himself, he would be in prison.” ” Robreno is the nation’s first Cuban-born American appointed to a federal bench.
Robreno, however, wa unconvinced and noted that “”I’ve been around civil proceedings for 30 years, both as a lawyer and as a judge. I’ve never seen anything like this.”
Wider is not the only one sanctioned. His attorney Joseph Ziccardi of Chicago will also have to pay for not controlling his client. Where “Wider’s conduct was outrageous,” Robreno found “Ziccardi’s complicity . . . inexcusable.” Ziccardi has asked to withdraw as Wider’s lawyer and now has his own lawyer in the matter.
Putting aside the grammatical implications, the legal implications of the fine are interesting. First, there is no express rule stated at the start of a deposition to avoid swearing and such language does appear in transcripts. However, the deposition is an extension of the court proceeding. Usually, however, it is the lawyer’s not clients who are sanctioned for misconduct in the prosecution or defense of a deposition.
Second, the fine against the lawyer may be problematic if the client refuses to comply with legal advice. Indeed, Ziccardi insists that he told Wider to clean up his potty mouth. His lawyer noted,
“But if a client refuses to listen to the advice, there is only so much you can do.” This is not grounds to simply quite a client in the midst of a deposition. Wider stormed out of the deposition repeatedly and he “would follow his inappropriate, obstructive, or dilatory remarks with a gleeful smirk directed at his counsel, at the transcriptionist, and even directly at the camera.” Indeed, the court noted that “after a particularly odious instance of obstruction.” The court also found the Wider “often refused to answer questions, and, when he did answer questions, provided intentionally uncooperative and long-winded answers to straightforward questions.” For a copy of the opinion in the case, click here.
For the video of the Wider deposition, click here.
At least this is a case of a client swearing in deposition, in this video, both the client and the lawyers end up swearing at each other and coming close to blows.