Wednesday, December 21, 2005
Court of Appeal Upholds Sanctions Against Mesereau Over Actions at Deposition in Blake Civil Case
By a MetNews Staff Writer
The imposition of $18,950 in sanctions imposed on attorney Thomas Mesereau for his conduct at a deposition in the civil wrongful death case against Robert Blake was upheld yesterday by this district’s Court of Appeal.
Div. Three, in an unpublished opinion by Justice Walter Croskey, said Mesereau acted unprofessionally at the deposition in the case brought by Bonnie Bakley’s estate and that Judge David Shacter acted within his discretion in setting the amount of sanctions.
“Mr. Mesereau’s conduct may be acceptable for the theatrical television presentations of law, but it is not acceptable for real judicial proceedings,” Schacter said in his order.
In a lengthy footnote, Croskey described the conduct thusly, in part:
“[Plaintiff’s attorney Eric] Dubin introduced himself to Blake, stating he was representing the decedent wife’s four children and was there in good faith as an honest man. Appellant [Mesereau] responded that Dubin was making a speech and was not an honest man but rather was putting on a circus and clown show. Dubin resumed his introduction regarding how a deposition works, he was there to ask Blake questions, would repeat questions Blake did not understand, the court reporter would take down the spoken words, a video would record the deposition, and he (Dubin) would be fair and give Blake an opportunity to say what he wants. Appellant broke in and ordered Dubin to ‘stop the self-congratulations and just give the standard professional admonition and let’s start the deposition.’
“Dubin stated his understanding that the privilege against self incrimination does not permit a deponent to refuse to answer all questions. Appellant and Dubin argued the point and then Dubin asked Blake his date of birth and appellant ordered Blake not to answer the question. Thereafter, Dubin asked Blake a series of questions about the decedent’s children, the murder of the decedent, and the role of the other named defendant in the case regarding events in the decedent’s life. Appellant repeated the instruction to Blake not to answer the questions, and from time to time he reiterated his opinion that the deposition was a circus and charade, he accused Dubin of making speeches and lectures on the record for publicity, and of being a ‘complete phony’ who was putting on a circus for the media, and accused him of ‘trying to get money in your pocket from [the decedent’s] relatives, who have gone to the tabloids and tried to extort every dime they can get out of this case.’”
Mesereau went on to call Dubin “liar” and “phony,” among other things, Croskey noted.
The attorney’s conduct violated several rules, Croskey said, including those that prohibit a deponent from unilaterally refusing to answer questions. Mesereau, the justice said, made no effort to work with opposing counsel to cause questions to be framed in such a manner that Blake could answer them without incriminating himself.
“We...reject appellant’s contention that he could not truly confer with Dubin because that would involve revealing his thought processes about Blake’s self-incrimination and revealing confidential information, and this would be a violation of his ethical duty to Blake,” Croskey wrote. “This excuse is too expansive to be valid. Moreover appellant’s assertion that Blake’s civil attorney, Mr. Ezzell did meet and confer with Dubin is of no help to appellant because Ezzell stated he agreed with appellant’s position that Blake should not answer any questions.”
Croskey also reasoned that Blake’s blanket refusal, on Mesereau’s advice, to answer any questions violated a prior order of Shacter’s that required the parties to appear for depositions on a court-ordered schedule; that they answer all questions, even if objected to, unless they called for privileged information; and that “any subject matter” was open for questioning in the absence of a protective order.
Mesereau could not be reached for comment late yesterday. His appellate lawyer, Nate Kraut, said he was “very disappointed in the result” but had not yet had the opportunity to speak to his client about seeking rehearing or Supreme Court review.
The case is Tual v. Mesereau, B175619.
Copyright 2005, Metropolitan News Company