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  • June 17, 2019

    Ending Uncivil Behavior in Depositions

    When the way lawyers comport themselves reflects on the profession, it is important for lawyers to behave with the same civility in depositions as in the courtroom. Tom Donnelly proposes a way to end bad behavior in depositions via courts’ scheduling orders that contain specific provisions on civil behavior.

    Thomas J. Donnelly

    yelling businessman

    The topic of the lack of civility in the practice of law come up at regular intervals in continuing education seminars and articles in legal publications. Usually, the commentator laments the situation, and moves on without proposing a solution.

    Uncivil behavior appears in many circumstances and takes different forms. I have now spent 24 years practicing law, all in civil litigation.

    Uncivil Behavior in Depositions

    One particular area I see ongoing uncivility is in depositions. I continue to see lawyers aggressively questioning (including raising their voices, if not outright yelling at) witnesses. Lawyers also ask questions which are not questions at all, but rather sarcastic digs at the witness (or opposing counsel).

    Tom Donnelly Tom Donnelly, Marquette 1995, is an associate with Grady, Hayes & Neary LLC in Waukesha, and has practiced for 24 years in civil litigation.

    On the other side of the table, lawyers raise objections that are not even thinly veiled efforts at instructing their witness on what to say. In my view knowingly leading the witness under the false guise of an objection fits in the same category as being hostile or sarcastic.

    Underlying the conduct in both instances is the feeling that there are no boundaries on what can be said in a deposition, that a deposition gives license to say just about anything at all, in whatever tone (no matter how offensive) because “it’s discovery.”

    Our Behavior Reflects on Our Profession

    I, of course, am not discouraging advocacy in depositions. I am calling for respect for the rules and civility in the demeanor of counsel, even – and especially – in the face of witnesses who are not civil.

    Depositions are arguably the setting that provides the most frequent contact our profession has with the public, at least in the context of civil litigation. The way we comport ourselves reflects on our profession.

    As an aside, this is often referred to as a problem with “young lawyers.” I disagree. In my experience, young lawyers are much more likely to adhere to the spirit of our procession. I see most of the uncivility (as I define it) in lawyers more or less of my vintage.

    Proposed Rules of Conduct

    Ours is a profession of rules by nature. Part of the problem is that when uncivility rears its head in a deposition, we lack the tool of a quick citation to a rule to call out offending counsel. With that in mind, there are three written sources which I would like to see in every Circuit Court’s local rules and expressly made a part of every scheduling order.

    The first is short and sweet, from a scheduling order in the Western District of Wisconsin in a case I am defending. The scheduling order in that case starts out with the following admonition:

    The parties and their attorneys must at all times treat everyone involved in this lawsuit with courtesy and consideration. The parties must attend diligently to their obligations in this lawsuit. They must reasonably accommodate each other in all matters so as to secure the just speedy and expense of resolution of each proceeding … failure to do so shall have consequences.”

    The second source comes from the Dane County Circuit Court rules. Here are the first three paragraphs:

    • Judges, court commissioners, lawyers, clerks and other staff shall at all times maintain a cordial and respectful demeanor and shall be guided by a fundamental sense of integrity and fair play in all of their professional activities.

    • Judges, court commissioners, lawyers, clerks and other staff shall at all times be civil in their dealings with one another. All Court and Court related proceedings, including discovery proceedings, whether written or oral, shall be conducted with civility in respect from each of the participants.

    • Judges, court commissioners, lawyers, clerks and other staff shall abstain from making disparaging, demeaning or sarcastic remarks or comments about one another, and shall not engage in any conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive.

    The final source comes from Rule 30 from the Federal Rules of Civil Procedure which specifically addresses objections:

    An objection must be stated concisely in a nonargumentative and nonsuggestive manner.

    I love the fact that the above rule specifically mentions demeaning and sarcastic remarks.

    Authority Needed

    I don’t know whether my experience is unique, but recently I find myself in more and more depositions where the spirit, if not the letter, of the above provisions are violated. For whatever reason, in my experience too many attorneys in deposition violate these prescriptions.

    We all know when counsel engages in this type of conduct in a deposition. It’ the type of conduct that would never fly in court. What is lacking is a ready source of authority to call counsel out when this type of conduct occurs. There should never be an instance where an attorney raises his or her voice at a witness or asks questions in a sarcastic demeaning or disparaging way, yet it happens all the time, and there is seemingly no rule to quell the offending conduct. Instead, attorneys on the other side of the offending behavior are left to compose an explanation on the spot as to why the behavior is inappropriate.

    Ending Uncivil Behavior via Scheduling Orders

    I propose that every scheduling order should contain specific provisions such as those set forth above.

    Before threatening to call the court to attempt to reach the judge (something which rarely if ever works), the idea would be to draw the violating attorney’s attention to the fact that he or she is violating the court’s scheduling order provision on civility.

    I predict that being able to cite to such provisions in the scheduling order would immediately end the problem in the vast majority of depositions. The offending attorney might very well reflexively deny that he or she was being hostile or sarcastic, or that an objection was improperly leading.

    However, most attorneys in my experience would just as reflexively refrain from further violations when confronted with a specific order prohibiting the conduct. For those who would not, the court can get involved and take further action as necessary.

    This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.

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