Attorneys have an obligation to provide zealous advocacy on behalf of their clients and to pursue a client’s interests within the bounds of the law. We recently posted an example of an attorney that crossed the line. Here’s another example which resulted in sanctions imposed upon an attorney for discovery abuse. In both cases, sanctions were levied against attorneys defending a deposition. Accordingly, we’ll take the opportunity to provide some tips to avoid a similar result in your practice.
In this recent example, a U.S. Magistrate Judge granted a plaintiff’s motion to compel production of a different witness, finding that the initial witness refused to answer legitimate questions during a deposition. For her part, the deponent’s attorney repeatedly objected that questions were too vague. The judge ruled that the witness evaded “perfectly clear” questions. Specifically, the witness was unwilling to answer questions and asked for clarification of common words like “what,” “does,” “responsibilities,” and “educational background.”
Further, in a “tag team” effort, defense counsel made inappropriate objections, indicated to the witness that questions be rephrased, and wasted time attempting to engage plaintiff’s counsel in banter. Further, both counsel and the witness continually averred that broad questions did not need to be answered.
In addition to ordering the production of a new witness, the judge ordered the defendant to reimburse plaintiff for the costs of the deposition. Further, in the new deposition, defendant’s attorneys were barred from making any objections unless they are based on privilege, mischaracterization of the record, or facts in dispute. The court also forbade the witnesses’ law firm from interrupting plaintiff’s counsel. In support of his holding, the judge noted that the unprofessional conduct of defendant and his counsel reflected poorly on the entire judicial process.
How to avoid a similar situation in your own practice? Here are some tips for defending depositions:
- Prepare and polish.
- Preparation is the major key to properly defending a deposition. Ensure your client tells the truth; remind her that the deposition is a proceeding under oath, and perjury is a crime. Also remind the client not to lose their cool or patience.
- “Polishing” is ok – do not instruct your client to lie, but work with her on conveying her ideas in a way that is inoffensive and thoughtful. Counsel your client how to answer questions succinctly, truthfully, and in a way that expresses the thought in a way that makes sense, and doesn’t detract from the issue at hand.
- Advocate appropriately. Here’s where the attorney above got into hot water. You’ve prepared your witness well. Now it is up to you to determine which objections are permissible and when it is prudent to instruct your client not to answer.
- Normally, the “don’t answer” instruction is limited to divulging a privilege, violating a protective order, or revealing a trade secret.
- Brush up on which objections are proper and improper, and which may be judgment calls.
- Always object succinctly, in a non-argumentative and non-suggestive manner.
- Know the procedure, which is often court-specific. In some jurisdictions you can call the judge and get a ruling on the spot. In other jurisdictions, you need to file a motion to compel.
- Cut the coaching. Remember, you, as the attorney, should not be testifying at the deposition, or coaching the deponent with objections. Also, you cannot say you do not understand the question; it is incumbent upon the deponent to ask for clarification. An exception occurs when you ask for clarification without suggesting the answer.
Here are some tips if you are on the other side of an attorney who is objecting inappropriately:
- Push back on the pest. First, ask why the objections are being made. If this discussion does not work, you may to tell the other lawyer that you will assume that there is a standing relevancy (for example) objection to every question, so the objection no longer needs to be made. If neither of those things works, just try to tune out the objections and proceed with the deposition. As the case above illustrates, a motion to compel a “replacement” witness may be in the cards.
- Concentrate on the content. Make sure you get answers to your questions (except in the rare instance when an objection is due to a recognized privilege).