“Gotcha Moment” Backfires on Lawyer

Darrell VanDeusen
Darrell VanDeusen

I watched Perry Mason (played by Raymond Burr from 1957 to 1966) as a kid.  More about why that’s relevant in a bit.  If you have watched any TV courtroom drama – Matlock (played by Andy Griffith from 1986-1995) works if you were too young to watch Perry Mason – you know the drill:  the defense attorney represents falsely accused people and he manages to prove that by drawing out the real criminal on the witness stand, usually with surprise evidence.  This is known as the “Perry Mason moment.”  You can watch it online now too.

But the difference between pretend and reality is, well, real.  A lawyer learned that the hard way after trying to play “gotcha” in a deposition.  Black v. New Eng. Comput. Servs., 2021 U.S. Dist. LEXIS 40596 (D. Conn. Mar. 4, 2021).  The case involves allegations of discrimination and defamation by three female employees.   The district court judge stated it this way:

“The plaintiffs’ claims stem in part from a company meeting that occurred in August 2018. [Company owner and president] Anatra allegedly summoned one of the plaintiffs—Danielson—to discuss her employment status with the company. According to the plaintiffs, Anatra made false and defamatory statements about all three of the plaintiffs at this meeting, largely accusing them in vitriolic terms of lying about him and the company in discrimination complaints they had filed with the Connecticut Commission on Human Rights and Opportunities.

Unbeknownst to Anatra, Danielson secretly audio-recorded this meeting. Danielson in turn gave this recording to her counsel who later filed this lawsuit for the three plaintiffs.”

Put aside for a moment that a secret audio recording is generally a bad idea (and illegal in Maryland by the way).  It’s what happened next that led to trouble in court.  

Connecticut’s federal district court has local Protocols and discovery disclosure requirements for most employment discrimination cases, the purpose of which “is to encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery.”

But the secret audio recording was not mentioned when the plaintiffs’ provided discovery.  In fact, it was not disclosed until the company president’s deposition – when the plaintiff’s attorney whipped out the recording in the planned “gotcha” moment:  “Counsel asked Anatra at this deposition if he had made the defamatory statements as alleged in the complaint. When Anatra denied doing so, counsel then surprised him by playing excerpts of the recording. . . . After counsel for the defendants objected that the recording had not been previously disclosed, counsel claimed she would disclose the recording but did not end up doing so until several months later in April 2020 and after the close of discovery in this action . . . . The defendants now move in limine to preclude the recording at trial.”

That’s exactly what the court ruled, granting the employer’s motion that the recording not be used at trial.  But then the judge went a bit farther (in what can be best described as a stinging rebuke), stating:  “Is there any good reason why counsel ignored the Protocols? None at all. . . . This suggests incompetence, evasion, or maybe both. The inference is strengthened by counsel’s effort to ambush Anatra with the recording at his deposition, as well as by the months-long further delay by counsel in producing the recording even after it was requested by the defendants when it was played at the deposition.”  I will spare you the rest but trust me it’s not pretty.

The take away here?  This is an easy one and it applies to both sides in a case.  Play by the rules.  If you err, correct it. Immediately.  I recall sitting in hearing before a well-respected judge on Maryland’s federal bench when he said to an opposing counsel who had made some – shall we say – “poor choices” with respect to his presentation of the evidence:  “you are getting a reputation in this court and it’s not one you should like to have.”  We all should keep that in mind in the workplace, even when legal proceedings are not involved.  A reputation is a terrible thing to waste.

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