Many experienced litigators will be able to tell you at least one story of a deposition that went poorly. Usually it starts out with an opposing attorney who is seeking retribution for something or just wants to prove to their client that they are zealous. The problem with that is that although depositions take place in informal settings, the rules of decorum and professionalism still apply.
Courts will usually sanction attorneys whose conduct during depositions falls short of what is expected of them as professionals. Particularly, courts won’t hesitate to sanction someone who demonstrates a lack of respect for the opposing counsel.
Many courts have imposed sanctions for “snarky” comments that tend to be common in headed depositions, but which are nonetheless below the level of civility expected from attorneys.
For example, in Lucas v. Breg, No. 3:15-CV-00258-BAS-NLS, at *2 (S.D. Cal. May 13, 2016), an attorney was sanctioned by the U.S. District Court for the Southern District of California for certain statements to the opposing counsel during a deposition, statements such as “shame on you,” “it appears you might be hallucinating by positing the possibility that the defendants are going to win this lawsuit,” and “you know, someone apparently didn’t fill you in on who you’re dealing with here.”
The sanctions for such conduct can be severe and even include an order for paying the opposing counsel’s fees or a monetary fine. In more severe situations, even a bar grievance is possible.
Let’s talk about a few useful tips on avoiding any ethical issues and sanctions in connection with depositions.
Always Encourage your Witnesses to Tell the Truth
Disputes commonly arise when a lawyer does an improper job of preparing their witness for the deposition. While preparing witnesses for the questions they will likely be asked during the deposition is no doubt important, most lawyers agree that coaching them is inappropriate.
By coaching we mean preparing witnesses to fabricate responses to anticipated questions, or even instructing them to withhold or alter the truth. This may violate Rule 3.3 of the California Rules of Professional conduct, which will become effective starting with November 1st 2018 and states that a “lawyer shall not … offer evidence that the lawyer knows to be false” and “if a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” The comments specify that this Rule applies to ancillary proceedings, such as depositions.
Pay Attention to and Follow the Rules
Civil misconduct is usually regarded as inappropriate in any court, but jurisdiction can vary in regard to whether a host of other conduct is permitted during depositions. Whether a lawyer can confer with the deponent is a gray area issue and some courts don’t allow such conferences while a question is pending.
Lawyers should check their rules of civil procedure, local rules, or standing orders to confirm what is the appropriate conduct for depositions. “Speaking objections,” for example, are a common issue. They involve a lawyer coaching the deponent on hot to answer specific questions or to provide information which basically amounts to testimony being provided by the defending lawyer. These objections are typically improper in federal courts, as Federal Rule of Civil Procedure Rule 30(c)(2) states that “an objection must be stated concisely in a non-argumentative and non-suggestive manner.” State courts will also usually not allow objections that go beyond simply stating the basis for the objection.
Another issue that may be addressed on the local rules is the circumstances in which a lawyer may be allowed to instruct their client to not answer a question. The most situation in which a lawyer might do this is when answering a question would provide privileged information. There are other situations where this might be justifiable, such as when the question is, as the Los Angeles Superior Court’s “Guidelines for Civility in Litigation” puts it, “manifestly irrelevant or calculated to harass.”
A key thing to keep in mind is that although an instruction to not answer may be based on a privilege claim, deponents may be required to answer questions which are relevant to the existence, extent, or waiver of the privilege, like the date of communication, who made the statement, whom it was made to and who else was present, to whom else was the information disclosed, and the statement’s general subject matter, unless this information itself is privileged.
Despite rules which clearly prohibit certain conduct at depositions, many lawyers think that they are merely suggestions or that there won’t be any consequences to breaking those rules, but as recent cases have shown, lawyers who disregard the rules do so at their own risk.