In Security National Bank v. Abbott Laboratories1 a federal court sua sponte sanctioned a lawyer for what the court believed to be unethical and obstructionist deposition tactics. This case and other recent cases have led lawyers and courts alike to focus on obstreperous conduct during the discovery process.
This article identifies the intersection between the discovery rules and the rules of professional responsibility and then focuses specifically on how professional responsibility applies to the deposition process — from noticing the deposition, to preparing the witness, to taking and defending the deposition, to postdeposition practices. Undisciplined behavior in discovery, and particularly depositions, unfortunately is not a new phenomenon. A deposition is a powerful discovery tool.
But lawyers can squander the opportunity without proper preparation and the tools to effectively interview witnesses. Best-selling author and attorney Shane Read says preparation is key.
Read wrote the book, Winning at Deposition, which won the highest publication award for professional excellence from the Association for Continuing Legal Education. Webcasts of the seminar are scheduled for June 2 and June Before you get into a deposition, you must know what the case is about.
Pay close attention to the answers. Make sure the witness answers the question you asked. Establish control over experts. Expert witnesses often can sense if a lawyer is going to find the weaknesses in their opinions, so prepare to find those weaknesses for example, attacking their assumptions about the case.
Look at the case from the other side. What are the important documents? What are the important questions the opposing lawyer will ask? Find the three most important answers and use those at trial rather than trying
Deposition testimony 5 simple rules for dating find 10 pretty good ones.
Focus on the best points you can make. You need to present your case in a compelling way. There are steps you can take to avoid having to compel an answer through a court order. Additionally, the pressures and competitive changes in the modern legal market have led some lawyers to put a premium on winning the case at hand at any and all cost, irrespective of ethics or discovery rules.
Lawyers want to please their clients and ultimately to win, to secure favor and future business. To do so, unfortunately, lawyers are more willing to push the envelope on tactics during the discovery process. It also increases the cost of the litigation, putting more pressure on litigants and affecting Deposition testimony 5 simple rules for dating only the merits of the case but also the settlement value.
Until recently, lawyers had little reason not toengage in obstructive conduct — the benefits were great, and the disadvantages were minimal. Obstructive behavior during the discovery process is effective because it hampers the other side in discovering facts and increases the cost of litigation.
On the other hand, there was little downside in pursuing the obstructionist conduct. But courts have begun focusing on obstructionist Deposition testimony 5 simple rules for dating. The increased use of videotaped depositions has permitted courts to see and hear firsthand the true nature and cost of inappropriate conduct. The viewer can hear the tone of the questions, hear any harassment of the witness, and see any physical actions that occurred at the deposition.
As a result, courts are becoming more assertive in sanctioning obstructionist conduct, thereby increasing the costs associated with such tactics.
The key ethics maxims most relevant to lawyers in the discovery process including depositions can be summed up as a requirement to tell the truth, play fair, and respect the court, the opposing party, and opposing counsel. Failure to adhere to these tenets might constitute the obstreperous behavior that courts are recognizing, and sanctioning, with increased frequency.
This rule provides a clear and additional obligation for ensuring that lawyers are honest and truthful.
In dealing with tribunals, lawyers have an added duty of candor. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false.
A lawyer must correct, using reasonable remedial measures, any misrepresentation of fact made to a court. While it seems obvious, the rules also explicitly require that lawyers respect one another and third parties.
Koewler11 the court of appeals recognized that if both proper and improper behavior things clearly of unequal value are given the same value in the courtroom, improper conduct would displace the proper conduct. Perhaps one of the ripest opportunities for improper behavior occurs during depositions.
Depositions often occur in informal settings, such as hotel or law firm conference rooms, not in courtrooms. A deposition consists of numerous steps that ultimately culminate in the actual taking of the deposition.
Each step in the process is an opportunity, whether lawyers realize it or not, for obstructive behavior that can trigger some sort of sanctionable conduct. The first opportunity for improper conduct arises in the context of taking the deposition — the formality of providing notice and the task of questioning the witness. If Deposition testimony 5 simple rules for dating name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.
The crux of the requirement is reasonableness, but neither rule defines what that means. As a general matter, it is largely a timing requirement: Serving a deposition notice only a few days before the deposition is not only inconsiderate, but also can constitute harassment of the witness.
Should this occur, counsel for the witness may be able to move for a protective order to prevent the deposition from occurring if the noticing lawyer refuses to reschedule; further, the noticing lawyer may be subject to sanctions.
Deposition testimony 5 simple rules for dating the statute does not provide a time limit, lawyers might opt to follow some best practices concerning the noticing of depositions:.
State in a cover letter accompanying the notice that you are amenable to scheduling the deposition at a mutually convenient time. The notice triggers the obligations under the rules. One cannot seek sanctions or relief for a failure to appear if a notice is not properly served. The examining lawyer in a deposition must keep in mind not only ethics rules but also rules of decorum that the Wisconsin Supreme Court has set forth. While broad lines of questioning may be permitted, the relevance must be weighed against purposeful efforts to harass or intimidate, which are not permissible.
It is important to have these considerations in mind when questioning a witness. Lines of questioning that are wholly irrelevant and done only to intimidate, harass, or threaten a witness are inappropriate under the discovery rules and the ethics rules, and as such are objectionable and provide a basis for seeking a protective order.
A lawyer might engage in improper conduct while defending the deposition. This can occur during witness preparation or during the deposition itself. Competent representation includes preparing a client-witness before the deposition is taken.
Preparing a witness for a deposition, however, is not the same as improperly coaching a witness. Asking the witness to reconsider his or her recollection of the case in the light of other evidence. Best practices in relation to rule 30 b 6 witnesses include not only preparing the witness on each topic but also serving written objections to overbroad topics before the deposition.
If necessary, it might be helpful for the witness to prepare and use a timeline or a list of specific, key facts to ensure that he or she is prepared to answer questions on the designated topics.
If Deposition testimony 5 simple rules for dating contains accurate information, there is little downside in assisting the witness so that the deposition does not turn into a memory contest. A key component of adequately defending a witness in a deposition, however, is making objections, which can hinder or slow the deposition substantially.
Rule 30 c 2 of the Federal "Deposition testimony 5 simple rules for dating" of Civil Procedure makes clear that depositions proceed despite objections and testimony is taken subject to the objections and provides limited circumstances for instructions not to answer:. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30 d 3.
The statute requires that all objections about the qualifications of the officer taking the deposition, the manner of taking the deposition, the evidence presented at the deposition, and any procedural objections must be noted.
Making inappropriate objections can lead to sanctions for the defending lawyer. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order. One common objection made is an objection to the form of the question.
At least one court has held that form objections are inappropriate when they do not specify a basis for the objection. There are a few things a lawyer can do to assess and mitigate risks when making form objections at a deposition. First, determine if the court in the jurisdiction in which the deposition is being taken has any rules relating to deposition objections — given the brevity of most local rules in circuit courts, it may not be surprising to find that such a rule does not exist.
Research the judge on the case — has
Deposition testimony 5 simple rules for dating or she ever had a similar case, or even made remarks at a public function about this sort of deposition conduct? If so, that is likely the best practice to follow. Assuming there is no relevant circuit court rule and that the judge has not indicated his or her views, it would be prudent to establish ground rules with opposing counsel about the nature and form of objections that are to be made at the deposition, either in a letter or email before the deposition or on the record at the beginning of the deposition.
Instructions Not to Answer. In Wisconsin, an instruction to a deponent not to answer a question can lead to a motion and order compelling discovery. The best practice when faced with a line of questioning that is inappropriate or harassing is to object and then adjourn the deposition to seek a protective order. In light of this, a good practice to follow is to determine whether there are any other nonobjectionable lines of questioning that can be pursued.
If so, you can suggest to the deposing lawyer that the objectionable questions be withdrawn and reserved to the end of the deposition, which will permit the deposition to continue on other appropriate lines of questioning, subject to the anticipated motion for a protective order. Lawyers can be sanctioned for making a substantial number of objections during a deposition if the excessive number of objections is found to be obstructionist. Ultimately, you should be selective when making objections.
Generally, having a private conference with the witness while a question is pending is impermissible, regardless of who initiates it — unless it is done to determine whether a privilege attaches and may be waived if the question is answered. There is no general rule as to whether, during normal breaks and adjournments, a discussion with the witness about the deposition is permissible. Many local rules and some case law, however, have deemed such discussions with witnesses about their testimony or future testimony to be inappropriate.
Such rules are troubling. Certainly the intent is to protect the truth and prevent improper coaching, but they nonetheless are in tension with Model Rule 3. While one should certainly check the local rules to determine if there is a rule governing private conferences with witnesses, do not be surprised if one does not exist. However, except in limited circumstances, the most sensible approach would be to prohibit the deponent and her attorney from discussing the substance of prior or future deposition testimony during short recesses agreed to all counsel.
Obstruction by the Witness. Lawyers are certainly not the only ones obstructing depositions. Witnesses, in some instances, are just as guilty — if not more guilty — of doing so. CPLR Article 31 contains the rules governing disclosure in general, and depositions in particular Page 5 doctor that varies from his deposition testimony, may be able to apply to the Deposition testimony 5 simple rules for dating. Always ask simple, clear questions, avoiding compound and .
Many of the old cases, which pre-date the new Uniform Rules, are.