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This article will take a look at both sides – starting off with difficult attorneys defending the deposition and difficult attorneys taking the deposition. Many of the techniques can be applied to both sides.
The Difficult Attorney Defending the Deposition
The person taking the deposition is in control of the deposition. One of the most fundamental rules is that you should always maintain control during the deposition. You maintain control by keeping in mind the following:
- What is the problem?
- Have I addressed the concern?
- What are my options?
Ground rules. Establish ground rules about how the deposition will be completed. Confirm the witness’ understanding of those rules. Simply establishing a set of ground rules may prevent certain types of misconduct.
Reinforce the rules. If the attorney argues that the question is confusing you may well want to ask the witness whether the witness understands the question and whether the witness understood your prior instruction that she was to inform you if the question was not clearly understood.
Avoid distractions. Some attorneys will want to chase rabbits. Objections to relevance or instructing the witness not to answer innocuous questions are particularly inappropriate. Avoid an attorney’s efforts to rephrase your questions in a manner which softens the focus of the question. It is entirely proper for an attorney, on occasion, to caution the witness not to speculate. In my mind it is equally improper for an attorney to caution a witness not to speculate with the intention of coaching the witness as to how to answer the question. As to these distraction techniques, one author suggests the following options:
- No response – keep eye contact with the witness until the witness answers the question
- Restate the question verbatim – this technique maintains a clean record and reasserts control over the deposition.
- Rephrase the question – if appropriate, this minimizes conflict, but also amounts to a concession of sorts.
- Meet the objection – Point out the improper nature of the objection. Explain to the witness that such tactics simply delay the deposition. Ask the witness whether the witness felt the question was unintelligible.
See , Depositions: Procedure, Strategy, and Technique , Lisnek & Kaufman, (1990).
Confirm Fact & Consequences of an Instruction Not to Answer. Nothing is more irritating than an improper instruction not to answer a question. Generally, the only reason to instruct a witness not to answer is privilege. In addressing the instruction, confirm the following:
- The attorney is instructing the witness not to answer
- Inquire as to the scope of the instruction not to answer
- The specific privilege upon which the attorney is relying
- The witness and counsel are aware that you will seek an order from the court, the deposition will continue at a later date, and the party may be responsible for the costs associated with it.
You want a perfectly clear record so that you can seek appropriate relief with the court. After you go through this litany, change gears to another topic, but later approach the area again and see if a different approach will yield a different answer. If the instruction is without any foundation, later inquiries may be answered without any objection. See , Depositions: Procedure, Strategy, and Technique , Lisnek & Kaufman, (1990).
Obtaining a perfectly clear record is necessary so you can seek appropriate relief with the court.
Go to the Court. A recent TIPS Journal article focused on the role of the Court in addressing deposition problems. See Depositions & the Court , Tort and Insurance Law Journal, Spring 1997, Vol. 32, #3, by James G. Carr & Craig T. Smith. The authors noted that, in one case, the trial court promulgated a series of rules concerning the conduct of depostions after one counsel complained about a witness’ right to confer with counsel. Attorneys facing these issues may well want to pull the case. Hall v. Clifton Precision , 150 F.R.D. 525 (E.D. Pa. 1993). The rules were as follows:
- The witness had to ask deposing counsel, rather than the witness’ own counsel, for clarifications, definitions, or explanations.
- Objections were permitted only to assert a privilege, make a motion under Rule 30(d), enforce a court-ordered limitation on evidence, or prevent waiver of an objection under Rule 32(d)(3)(B).
- Counsel could not direct or request that a witness not answer a question, unless due to a privilege or a court-imposed limitation on evidence.
- Counsel could state the basis for an objection and nothing more, and not make any statements which might suggest an answer to the witness.
- Counsel and witness clients could not have private off-the-record conversations even during breaks and recesses, except for the purpose of deciding whether to assert a privilege; moreover, the witness’ counsel was to note in the record the fact of every conference and explain its purpose and outcome, with opposing counsel being permitted to inquire to ascertain whether there has been any witness coaching and, if so, what. (The authors note that this provision may well violate 28 U.S.C. § 2074 which states that any rule creating, abolishing or modifying an evidentiary privilege shall have no force or effect unless approved by an Act of Congress.)
- Counsel and the witness client had no right to discuss documents privately before the witness answered questions about them. Deposing counsel, however, had to provide the witness’ counsel with a copy of each document shown to the witness, either when shown or earlier.
These rules reflect the Court’s broad power in resolving discovery disputes. The Seventh Circuit has recognized that deposition misconduct can subject offending counsel to contempt sanctions. Castillo v. St. Paul Fire & Marine Ins. Co. , 938 F.2d 776 (7th Cir. 1991). The basis for a contempt sanction is that a deposition is ancillary to a judicial proceeding, so that counsel must conduct themselves as if they were before a judge. See Depositions & the Court , Tort and Insurance Law Journal, Spring 1997, Vol. 32, #3, by James G. Carr & Craig T. Smith, p. 646. The federal magistrates have, in the past, monitored depositions by telephone and addressed difficult evidentiary issues as the deposition progressed. Unfortunately, many state court judges are simply unable to accommodate such requests. A better approach may be to have the deposition at the courthouse so that important disputes can be resolved quickly.
One judge made a checklist of 10 points for lawyers who were calling a judge for a ruling during a deposition. This checklist is as follows:
- Make sure the matter is important.
- Be right.
- Know your judge.
- Make sure you have made your record.
- Have your act together. (Have the court reporter ready to read the relevant questions, answers and objections.)
- Begin at the beginning. (Place the issue in context so the judge can understand the relevance of the issue.)
- Know what you want and ask for it precisely.
- Be reasonable. (Be able to state truthfully that you tried to work the matter out.
- Do not complain about your adversary. (Judges want to only hear the issue, not the dirty details.)
- Remember that such a ruling may establish a precedent to which you may have to respond in dealing with objections about your conduct in front of the same judge.
(From Taking and Defending Depositions in Commercial Cases , Practicing Law Institute 1994, page 157, “Calling a Judge for a Ruling During a Deposition or a View from the Other End of the Line, the Ten Commandments” by the Honorable Sharon E. Gruvin.)
The Difficult Attorney Taking the Deposition
At the other extreme of the spectrum is the abuse by attorneys taking the deposition. Many of the general techniques apply equally well to this situation. The defending attorney’s number one weapon is careful preparation of his witness. For other problems, the following may be of assistance:
- Set and Keep Time Limits. A tired witness is a vulnerable witness. Take breaks as necessary to keep the witness fresh or keep his or her emotions in check if the deposition becomes particularly intense.
- Know your place. Competently assert objections that are appropriate in the deposition, particularly early in the deposition. This way, you have a measure of control over your witness.
- Be careful to avoid repetitive or argumentative inquiries. It is uncommon for an attorney to approach one area of inquiry and later re-visit the same area. If this happens, the witness will probably have minor inconsistences between his prior testimony.
- Ensure that all appropriate privileges are protected. Everyone knows what is attorney-client privilege, but some people forget other less well known privileges. For example, in medical malpractice cases, peer review privileges as well as patient confidentiality may be at issue.
- Document objectionable behavior. If an attorney makes an improper gesture or a sarcastic tone, these kind of matters should be noted for the record.
See, Taking and Defending Depositions in Commercial Cases , 1994, Practicing Law Institute 1994.
About the Author:
Derrick Wilson is founder and partner of Mattox & Wilson in New Albany, Indiana. Richard Mattox and Derrick Wilson were named on the 2007 and 2008 Indiana Super Lawyers list. The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn the Super Lawyers honor.