Swear Once and Only Once So Help You God: New Yorker Fined for Swearing in Deposition

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
here.

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.

For the full story, click here and here.

22 thoughts on “Swear Once and Only Once So Help You God: New Yorker Fined for Swearing in Deposition”

  1. [EDIT:]
    Should the court be able to deprive someone of their property (by way of a large fine) just for acting impolite?

  2. “Take away the right to say fuck and you take away the right to say fuck the government.” — Lenny Bruce

    If the deposing council doesn’t tolerate the behavior (swearing or otherwise), then he can end the deposition, just as he did. But should the court then be able to deprive the someone just for acting impolite?

  3. I may be an atheist, but in your song writing abilities–I have faith! If you get the inspiration, I’d love to see what you come up with.

  4. We need D.W. to do the ballad of: “You’all want a piece of me, Fat Boy”! That’ll bring the tone right up where it belongs.

  5. Well, “Pretty Boy” certainly elevates the discussion from “Fat Boy” on the second video.

  6. There a deputy sheriff approached him
    In a manner rather rude,
    Vulgar words of anger,
    An’ his wife she overheard.

    Pretty Boy grabbed a log chain,
    And the deputy grabbed his gun;
    In the fight that followed
    He laid that deputy down.

    Apparently vulgar language and altercations over it have been “in usage” for quite a while.

    From the Ballad of Pretty Boy Floyd–also something in there about some men rob with a gun, some with a pen. I don’t know why I think that applies to mortgage companies–idol free association on my part I guess!

  7. “…So now we have it, Wider has apparently accurately diagnosed himself, the Judge concurs, GMAC has a humdinger of a case, and Wider’s attorney, Ziccardi, has asked to withdraw and has secured his own counsel And it all cost Wider only $29,000.00 plus the inevitable judgment. Who says the process doesn’t work effectively and efficiently?”

    ***

    “I must confess that I also watch the chemical deposition a couple of times. It is the legal version of a car crash, revolting and riveting at the same time.”

    And the winner – Testosterone Poisoning or Insipient Verbal Diarrhea?
    Tough call.

  8. They put ESQ after your name to remind you that “Every so often, Stay Quiet,” especially when you’re ahead. Some lawyers apparently never got that memo.

  9. I must confess that I also watch the chemical deposition a couple of times. It is the legal version of a car crash, revolting and riveting at the same time.

  10. I also enjoyed the second deposition involving a chemist in the Monsanto case. There, the deponent was the smartest guy in the room and the lawyers did their best to prove it by gumming up the process with some bad-natured sniping added with some machismo in calling the other lawyer out to fight in the hall. Episodes like this are all too common (as Judge Rombreno noted in his opinion). The problem is that everyone loses respect for the process and it reinforces stereotypes of the lawyer as hired gun or worse, a(n) [insert your own expletive]. The best lawyers I know can cross-examine without raising their voice or calling out the ego of the other counsel. That is more intellectually satisfying and financially profitable since sooner or later you have to deal with the other lawyer to settle the case anyway.

  11. The video is revealing in so many ways … particularly how anger is inversely proportional to intellect. The tactic worked because deposing counsel finds the verbal boxing irresistible and spars.

    This reminds me a lot of NY mob boss “The Chin”, who began with invective laden denials but refined his style by permanently adorning himself in pajamas and robe. Leaving federal investigators regularly ranting to themselves and covering their windshields with spittle and coffee as they F-bombed in frustration from parked cars and Con Edison Vans.

  12. I put in another video link of part of the deposition that should work (though after an annoying ad).

  13. Mespo, I have to agree that Wider just won GMAC’s case: Sleazy v.Sleazy. Vince, I take your point as well. As a feminist there are certain swear words against women (for example) that I take offense at. In my own case though I would still rather have the deponant “out” himself as the real jerk he is for all to see as in Mespo’s analysis.

    Also, I couldn’t get the video to work. If you got it off a different site would you please let me know. Otherwise I will try off this site later.

    Thank you,

    Jill

  14. To add a little flavor and a lot of insight into this deposition, I am providing an excerpt gleaned from the Judge’s opinion:

    Wider: And I’ll tell you what uncivil and what
    uncourteous is. Telling you to go f**k yourself
    is uncivil. If you ask a question, I’m going to
    give you a response. If you pry into my father’s
    death, I’m going to give you a response. If you
    f**k with my MENTAL ILLNESS, I’m going to give you
    a response. And if you threaten to put me in
    front of a judge, let’s do it. I got all the time
    in the day, all the time in the day, and the judge
    will restrain you. (emphasis and censoring added)

    Bodzin: Are you done, sir?

    Wider: No, I’m not. We’re just beginning.

    So now we have it, Wider has apparently accurately diagnosed himself, the Judge concurs, GMAC has a humdinger of a case, and Wider’s attorney, Ziccardi, has asked to withdraw and has secured his own counsel. And it all cost Wider only $29,000.00 plus the inevitable judgment. Who says the process doesn’t work effectively and efficiently?

  15. The headline of this post is confusing because the word swear has two different meanings. The primary meaning of the word swear is to give an oath or affirmation, while the (very) secondary, informal meaning is to use profanity. The guy swore once, in the primary meaning, and used repeated, unnecessary and inflammatory profanity thereafter in the rest of the deposition, in the secondary meaning.

    The repeated, deliberate profanity was absolutely wrong in the situation because it was disruptive to the concentration of others, and could have totally distracted their attention from the issues at hand. It would be a lot like ringing a bell or honking a horn in every other sentence to distract and disturb the parties. The ruling tells others to keep serious when serious business is at hand.

    Leave the profanity for a standup routine, where in the voice of Lenny Bruce or Sam Kinison it may be funny to some. You do not have to listen to a stand up routine. People are compelled by law to attend depositions and should not be subjected to this type of verbal abuse in a compulsory situation.

  16. Jill:

    I saw the video excerpt of the deposition (good move putting it on video), and, were I deposing counsel, I would love it. Here in Virginia we may use a party deposition for any purpose, and I would just cue it up and play it for my opening statement at trial. Any doubts about this guys respect for the process would be erased, and any natural sympathy of the panel would likewise be vanquished, along with any defense that his actions were not malicious. Hopefully, there is a claim for punitive damages arising from the alleged fraud, and my guess is that the over/under for the punitive verdict is around $5 million given this performance. Opposing counsel should have refrained from asking for costs since our “potty mouth” can claim he was punished and properly chastised if he is now a good boy in a subsequent deposition. ( There would no more for me) I like it when the jury gets to see the real character of the deponent. It’s awfully rare, and in this case there is just so much to work with. I also bet no settlement will be forthcoming. As much trouble as the deposing counsel had controlling this witness can be magnified ten-fold with respect to the problems the witness’ own counsel is likely to have.

  17. “It’s in usage”. This is a wonderful story seeing as it involves GMAC and a mortgage broker! I don’t see how his attorney can be fined. He made a good faith effort to restrain his client and unless he had a shot of haldol handy I don’t see what else he could have done.

    I don’t even think swearing per se should be fined. If swearing occurs as part of a pattern to disrupt a deposition, then it seems reasonable to fine. Otherwise, “it’s in usage”!

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