Coaching the Witness: How to Handle the Speaking Objection.

imageYou are in a deposition and you are hammering an opposing witness. The witness has backed off of her speed estimate and is just about to concede she has no real basis to estimate her speed when the opposing attorney interrupts and launches into a speech:

Q. So, you would have to guess or speculate as to how fast you were traveling at the time of the collision?

Counsel: Well, that’s not what the witness said at all. What she said was that she thought she was going 35 m.p.h. She was not guessing when she said that…

Or perhaps you have not even got a chance to ask a question on a topic when this happens:

Q. Did you consider the walkway to be unsafe?

Counsel: Well, you can answer it if you know!

Or perhaps the other attorney just gets mad and tries to bully you out of a line of questioning by threatening to end the deposition. This is a pretty common occurrence in both civil and criminal depositions. So what do you do? How do you handle such behavior? Well, such interference is improper and is prohibited under the Federal Rules of Procedure. It is usually improper under the state rules of procedure or the court’s local rules as well. Federal Rule of Civil Procedure, Rule 32 provides that:

(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

* * *

(2) Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. 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). [Emphasis Added]

In other words, coaching a witness while testifying is strictly prohibited. In addition, the power of a party and their counsel to end a deposition is very limited. Rule 30 of the Federal Rules of Civil Procedure provides:

(d) Duration; Sanction; Motion to Terminate or Limit.

(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(2) Sanction. The court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.

(3) Motion to Terminate or Limit.

(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.[Emphasis Added]

(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.

A witness should answer any question posed unless it calls for privileged information. Redwood v. Dobson, 476 F.3d 462, 468 (7th Cir. 2007)(held instructing a witness not to answer a question is improper absent a claim of privilege). Likewise, a party has no power to unilaterally stop a deposition; that power rests solely with the court. In order to get a protective order terminating deposition, a moving party must show that examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress a witness or party. If an attorney is engaging in harassing and abusive questioning, then a party has the power to halt the deposition and promptly seek an order terminating the deposition. However, this must be done immediately. Such a measure should only be used in extraordinary circumstances since the losing party risks incurring sanctions. Smith v. Logansport Community School Corp., 139 F.R.D. 637, 640 – 641 (N.D. Ind. 1991)(held a party had no right to halt a deposition just because a question may have been asked and answered earlier in the deposition since an attorney had a right to challenge the consistency of the recollection of the witness).

Normally, I will call out opposing counsel if they make a speaking objection and state: “Speaking objections are prohibited. You are not allowed to give a speech. What is your legal objection and the Rule of Evidence you are relying upon?”

After, opposing counsel states his legal objection; I then have the court reporter read back the question to the witness so that there is not a need to restate the objection: “If the Court Reporter would please read back the question to the witness so that there is no need to repeat the objection.” This usually results in the witness forgetting the advice, and answering my question. If the interference continues, I advise opposing counsel of the law and the provisions of Rule 30 one more time and have the question read back.

If opposing counsel continues to interfere, I call the court for help or file a motion for sanctions under Rule 37. There are a number of cases out there to support such a motion. See Woods v. Ramsey, 199 F.3d 437 (5th Cir. 1999). Have your legal authority ready and cite it into the record of your deposition. This should put an end to such antics.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on March 26, 2012, in depositions, Evidence, Trial Advocacy. Bookmark the permalink. Leave a comment.

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