Trials & Litigation
Finger-pointing and yelling at deposition does not amount to assault, appeals court says
Posted May 21, 2014 6:15 AM CDT
By Debra Cassens Weiss
A New York appeals court has affirmed dismissal of a lawsuit contending that a onetime Paul Hastings partner committed assault by wagging a finger and yelling during a deposition.
The Appellate Division, First Department, ruled that the alleged conduct by lawyer Allan Bloom doesn’t amount to assault. The court also said a slander claim for alleged defamatory statements by Bloom during the deposition was properly dismissed. The Legal Profession Blog noted the opinion.
Bloom left Paul Hastings in February to join Proskauer. The $1 million suit by lawyer Kenechukwu Okoli had claimed Bloom rushed Okoli during the August 2011 deposition "and began yelling at the top of his lungs and shaking his pointed index finger violently less than one foot from Okoli's face.” Okoli said he responded by slapping Bloom in the face. Okoli also alleged that Bloom defamed him by calling him "uncivilized, ignorant and incompetent.”
The appeals court said Okoli’s claims were properly dismissed. “The physical conduct alleged by plaintiff, which amounts to finger pointing and generalized yelling in the context of a heated deposition, is inappropriate behavior, not to be condoned, but, without more, is not the type of menacing conduct that may give rise to a reasonable apprehension of imminent harmful conduct needed to state an actionable claim of assault,” the court said.
The appeals court also said the slander claims should be dismissed because the alleged comments were made during a judicial proceeding “and may be considered pertinent to that proceeding.”
A Paul Hastings spokesperson released this statement on the decision: “We are very pleased with the decision confirming the trial court’s order that the case was without merit. The decision represents a complete victory and an end to this unfounded complaint.”
Bloom tells the ABA Journal he's pleased with the result and glad to see the matter put to rest. "At the same time," he said, "I’m a bit disappointed not to have had the chance to disprove completely the allegations, given that the case was dismissed so quickly."
Okoli's lawyer, Nicholas Penkovsky, told the ABA Journal that “right now we’re reviewing our alternatives.”
“My opinion on the opinion is that the panel of the appellate division disregarded the facts,” which were presumed to be true for purposes of the motion to dismiss, Penkovsky said. Civil allegations of assault require a fear of imminent contact, and that standard was satisfied, Penkovsky believes.
“The truth or falsity will never ultimately be known because the court will not allow us to pursue the case,” Penkovsky said. “I do not believe the claim to be frivolous.”
Penkovsky also said he doesn’t see how calling someone ignorant and incompetent is pertinent to the legal proceeding.
He fears the decision could encourage other lawyers to conduct themselves inappropriately during depositions. “I certainly have some concerns that other attorneys may look at this,” he said, as “safe territory to enter in the course of a deposition.”