Litigation Section Blog: On Deposition Etiquette: Views from Our Own:

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  • Litigation Section Blog
    February
    10
    2020

    On Deposition Etiquette: Views from Our Own

    Barbara A. O'Brien

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    As litigators, we have experienced the good, the bad, and the ugly at depositions. Barbara O’Brien offers a few suggestions for a good deposition from our own Wisconsin litigators.
    deposition table

    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.

    Barbara O’Brien Barbara A. O’Brien, Marquette 1987, is an attorney with Borgelt, Powell, Peterson & Frauen, S.C. in Milwaukee, where she practices in insurance defense litigation and coverage.

    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:

    • Treat the witness with respect. Fact witnesses are usually nervous, and experts are just doing their job. Remember, an attorney takes an oath of professionalism with any witness.2

    • Always introduce yourself to the deponent before you begin questioning.

    • 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

    • If you do not like the answer to a question, do not argue that the deponent did not answer your question and then continuously badger the witness trying to get the answer you want. The badgering cannot be addressed by a simple form objection.

    • If you know the witness does not have the proper foundation to answer a question, do not waste time asking the question.

    • Listen to the witness’s answer. Then ask the next natural question, as opposed to staying on your script.

    • Listen to the questions asked by other counsel to avoid wasting time re-asking the same question.

    • You are never too old to learn from another attorney. Pay attention to things that other lawyers do that you like and do not like.

    • Be cordial and professional to the other lawyers.

    • Do not obstruct the deposition by needless objections.4

    • Explain legal terms to witnesses (i.e., the meaning of interrogatories, or what an objection means).

    • Be on time to a deposition. Keep in mind that the time of both opposing counsel and the witness is also valuable.

    • Avoid childish and overt expressions of distaste for questions or length of questioning or rude comments.

    • For young lawyers, do not allow yourself to be bullied by longer practicing attorneys. Be prepared by reviewing proper objections and advising witnesses to still answer, unless instructed otherwise.

    • Bring copies of all exhibits that you will use to the depositions for all attending.

    • Remember to use the exhibit number when referencing a document to keep the record clear.

    • Don’t assume a woman attending the deposition is the court reporter.5

    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.

    Endnotes

    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.





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