As litigators, we have all experienced the good, the bad, and the ugly at depositions.
The good may include one that is a master in the art of conducting depositions. The attorney exudes professionalism while skillfully asking relevant and probing questions.
More memorable of course, are the bad and ugly ones.1 Often times for those conducting the depositions, they have spent hours of preparation in order to ascertain the deponent’s knowledge and potential trial testimony, only to be disrupted with continuous speaking objections and coaching of the witness.
For those defending a deposition, abusive tactics by opposing counsel – including asking burdensome, harassing, and repetitive questions – frustrate the process. Bad and ugly depositions erode the purpose and the effectiveness of the discovery process.
Prioritizing Good over Bad & Ugly
While much has been written on the topic, it may be helpful to hear directly from our own as to what they consider to be good, bad, and ugly deposition tactics. Here are some of their thoughts:
Please, please, please, just state your objection. Do not state a speaking objection or coach the witness by rephrasing a question. (“[T]here is no proper need for the witness's own lawyer to act as an intermediary, interpreting questions, deciding what questions the witness should answer, and helping the witness to formulate answers.”)3
Conclusion: Making Litigation Civil
These suggestions are reminders of what we should already know. The practice of litigation can be rewarding in so many ways. Yet, the practice can also be extremely challenging and difficult. Civility between lawyers and witnesses can result in a “good” deposition for all involved.
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.
1 Perhaps a recent deposition I attended was the motivation for this blog.
2 Dean Dietrich, in “Ethics: Rude Behavior at Depositions,” Wisconsin Lawyer magazine, March 2015, says: “[A] lawyer violates SCR 20:8.4 (regarding misconduct) if the lawyer engages in conduct that violates the attorney's oath.” The Attorney’s Oath includes the statement: “I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged.”
3 Hall v. Clifton Precision, a Div. of Litton Systems, Inc., 150 F.R.D. 525, 528, 27 Fed. R. Serv. 3d 10 (E.D. Pa. 1993).
4 SCR 20:3.4 (Fairness to opposing party and counsel) provides in part that “A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. …”
5 This comment was made by several woman litigators.