July 14, 2022

Podcast - Ethical Deposition Conduct

Ethical Witness Preparation Series

In the final episode of his "Ethical Witness Preparation" podcast series, "The Ethical Witness: Ethical Deposition Conduct," litigation attorney Dan Small discusses the importance of ethical conduct during a deposition. Mr. Small notes that lawyers must understand the rules governing conduct and be able to clearly explain it to the witness. He then provides a clear example of what not to do in a deposition, before examining three areas that raise the most common conduct issues.

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Podcast Transcript

One key extension of any discussion on the ethics of witness preparation is ethical conduct during a deposition in the heat of battle. Lawyers must understand the rules governing conduct, consider how best to work within them and explain it all clearly to the witness. Not easy tasks under the best of circumstances, much less in an adversarial deposition. Sometimes, the impropriety is clear for all to see. There are plenty of videos floating around the internet of outrageous conduct in depositions. One of the best known is from a Texas deposition involving attorneys Joe Jamail, representing the plaintiffs, and Edward Carstarphen, defense counsel for Monsanto Company.

The whole exchange is too long and embarrassing to quote here, but I think one small sample will do:

Jamail: You don't run this deposition, you understand?

Carstarphen: Neither do you, Joe.

Jamail: You watch and see. You watch and see who does Big Boy...And don't be telling other lawyers to shut up. That isn't your job, fat boy.

Carstarphen: Well, that's not your job, Mr. Hairpiece. 

Jamail's shameful conduct help led to changes in the Texas rules – dubbed the "Jamail Rule," after the famous video  –  to severely limit lawyer conduct in depositions.

Beyond the extremes, there are three areas that raise the most common conduct issues:

  1. speaking objections
  2. instructions not to answer

and

  1. conferences with counsel.

Let's take a quick look at each one.

Speaking Objections

In most depositions, substantive and evidentiary objections are reserved for trial. This means that, with a few exceptions, what remains are form objections. Some states have rules prohibiting objections or statements that seem to coach, instruct, or suggest an answer to the witness. This bright line can get blurred because, in many jurisdictions, lawyers who object to form are allowed to give a basis for their objection. One of the best reviews of common speaking objections comes from U.S. Magistrate Judge Gale, in Cincinnati Insurance v. Serrano. Judge Gale highlighted the following objections:

  • Vague: This is usually "a speaking objection disguised as a form objection...Only the witness knows whether she understands a question, and the witness has a duty to request clarification if needed." Another court once imposed sanctions for counsel's repeated statement that "I don't think she understands what you mean."
  • "If you know:" Judge Gale explained that various versions of this were "raw, unmitigated coaching." The witness has already taken an oath to tell the truth. If they don't know, they should say so.
  • Speculation: Speculation is "a foundation objection," not a form objection, and it "tends to coach the witness to respond that they do not know the answer."
  • Suggestive: This is also an "improper speaking objection." Its only purpose can be to warn the witness not to agree.

Instructions not to Answer

While we can debate the definition and impact of speaking objections, the impact of an instruction not to answer is much more direct. Telling a witness not to answer can be even more disruptive than objections themselves. As a result, the rules are strict. Under the Federal Rules of Civil Procedure, "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)."

Conferences with Counsel

Courts have struggled with limitations on  –  and abuses of  –  conferences with counsel. On one end of the spectrum, a court found that a rule prohibiting a civil litigant to consult with their attorney during breaks and recesses would infringe on their constitutional right to counsel. However, there is no doubt such a right can be abused. In one of the most frequently cited cases on this issue, Hall v. Clifton, a Pennsylvania court held that "a deposition is meant to be a question and answer conversation between the deposing lawyer and the witness," meaning there was no absolute right to conferences during the deposition. Some courts have adopted the guidelines from Hall, while others have said they go too far. Conferences while a question is pending are universally prohibited, unless they are conducted to protect privilege. Otherwise, courts must balance competing considerations. For example, one court found prohibiting conferences during breaks was appropriate during the actual deposition but did not extend the ban over a multi-day deposition. United States v. Phillip Morris, 212 F.R.D. 418 (D.C. 2002). Because of the varying rules governing attorney conduct during depositions, every practitioner must understand the rules in their specific jurisdiction and explain them to the witness. These rules will help both the witness and the lawyer anticipate problems that may arise during the deposition and prepare accordingly. They will also protect the lawyer from court sanctions and the legal system from a stain on its integrity. More than 60 years ago, one court recognized that "[i]t is usual and legitimate practice for ethical and diligent counsel to confer with a witness whom he is about to call prior to his giving testimony." Homdi v. Fire Assoc. of Philadelphia, 20 F.R.D. 181, 182 (S.D.N.Y. 1957). However, recognizing the importance of witness preparation also means appreciating its challenges.

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