Category Archives: depositions

Proper Objections at Your Expert’s Deposition

 
Palais de justice historique de Lyon, France

Objections should be kept to a minimum. The Rules contemplate that
objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory
Committee Notes (1993 Amendments) (noting that “[d]epositions frequently have been unduly  prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be  limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:  

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).  

The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a  question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which  objections must be made or waived:  

(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence,  relevance, or materiality of testimony—is not waived by a failure  to make the objection before or during the deposition, unless the  ground for it might have been corrected at that time. 

(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:  

(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or  other matters that might have been corrected at that time; and  

(ii) it is not timely made during the deposition. [Emphasis Added].

The Rules should be abided by during the course of the deposition.

Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.  

Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):  

1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.  

2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).  

 3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).  

 
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.  

 
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hallsupra.  

 
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)  

 
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.  

 8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
Hall, supra.

 
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere
, 182 F.R.D. 614 (D. Nev. 1998).  

10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.

Expert Witness Retainer Agreements – Striking the Right Deal.

Here are points to consider:

1. Cannot be a contingent fee arrangement. This is unethical and would be
disastrous regardless… enough said.

2. Cost of initial consultation. This should be free or nominal, but make sure this
is clear.

3. Definition of scope of work. This should be set out in the initial engagement
letter in a straightforward, succinct manner.

 
4. Determining whether the case will be billed hourly or in stages. This should
be discussed at the front. Are you doing it by the hour or by the job to be performed? By the job
avoids runaway expenses, but can lead to experts cutting short the work that needs to be done.
5. Setting a budget. This avoids surprises for both sides and eliminates the stress of
the unknown.  

6. Regularity of billing statements. Same as above. It eliminates stresses and
surprise by not including the expert’s bill in your final statement of charges or in the
reconciliation to your client.  

7. Estimate of costs associated with forensic testing and/or scene work. Such
work can involve outside contractors or specialists. You want to budget these out as well.

8. Cost benefit analysis of economy versus completeness. If you cannot afford to
do everything necessary, cover it with your client first! Explain that the costs ultimately are
either paid directly or indirectly. Some clients will raise hell after you settle their case even  though you may have fronted the expenses and resolved the case very favorably. Keep your  client informed of the cost in advance of incurring it.  

9. Cost associated with satisfying federal court or state court disclosure
requirements. What costs in your jurisdiction are to be borne by the party, versus the opponent?
Initial disclosures or answers to interrogatories are usually the financial responsibility of the  party who hired the expert.  

10. Cost associated with responding to discovery requests. Additional requests for
information or discovery may not be had for free. Under Federal Rule of Civil Procedure
26(4)(E):  

Unless manifest injustice would result, the court must require that the party
seeking discovery:  

(i) pay the expert a reasonable fee for time spent in responding to discovery under
Rule 26(b)(4)(A) or (D); and  (ii) for discovery under (D), also pay the other party a fair portion of the fees and  expenses it reasonably incurred in obtaining the expert’s facts and opinions. 

 If you are in state court, check your jurisdiction’s law and make sure your expert is paid
in advance of doing the work.  

I hope you strike the right deal.

The Case Against Experts in the Courtroom

20120227-001826.jpg“If you can’t explain it to a six year old, you don’t understand it yourself.” Albert Einstein

I have always thought it is unclear whether Indiana Rule of Evidence (IRE) 615 applies to depositions. IRE 101(C) states:

Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:

(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Miscellaneous proceedings. Proceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.

Interestingly enough, no mention of depositions is made in the proceedings excluded.

Ind.T.R. 30(C) states in part:

Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(B). *** All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. When there is an objection to a question, the objection and reason therefr shall be noted, and the question shall be answered unless the attorney instructs the deponent not to answer, or the deponent refuses to answer, in which case either party may have the question certified by the Reporter, and the question with the objection thereto when so certified shall be delivered to the party requesting the certification who may then proceed under Rule 37(A).

Ind. T.R. 32(B) states:

Objections to admissibility. Subject to the provisions of Rule 28(B) and subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any depositions or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
* * *

(D) Effect of errors and irregularities in depositions


(3) As to taking of deposition.

(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. ***

Ind. T.R. 43(B) then reads:

Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

My take away from all of this is that if you want to use the deposition at trial or in connection with a motion for summary judgment, then the rules of evidence would apply. Also, if you do not object to the presence of the expert at the time of the deposition pursuant to IRE 615 the objection is waived because it could have been obviated by the opposing attorney by ordering the expert to leave. If the opposing attorney disagrees then you would have to hope you win the issue at trial or stop the deposition and immediately file a motion to terminate under Ind. T.R. 30(D).  As a result, I would think a court would find IRE 615 applicable to a deposition.

That being said, I think having an expert present to aid you in examining another expert would usually be “a person whose presence is shown by a party to be essential to the presentation of the party’s cause” under IRE 615(C). In Ledden v Kuzma, 858 N.E.2d 186 (Ind.Ct.App.2006), the Kuzmas sought a protective order barring Ledden’s expert from attending Ledden’s deposition of the Kuzmas’ expert witness. The Court of Appeals stated:

Under appropriate circumstances, it may be proper for a protective order to be granted barring an expert -or anyone else – from attending the deposition in question. If a party is able to meet the requirements of Trial Rule 26(c)(5), then a protective order would be warranted. But if, as here, a party is unable to provide any particular and specific demonstration of fact in support of the request for a protective order, then there is no reason – based in logic or rule – to bar the expert from attending the deposition.

Generic allegations of prejudice were made in Ledden v Kuzma.  A factual demonstration supported by evidence of real harm seems to be required given the holding in Ledden v Kuzma.

Trial is a different thing. The argument for the a separation of witnesses is weaker at the discovery stage since you may need the help of your own expert to pin someone down at the pretrial discovery stage whether investigation is needed. While IRE 615(C) does allow a party to designate a person whose presence is essential to their presentation to be present in the courtroom, this creates practical problems and raises concerns about “fairness in administration” and “the end that the truth may be ascertained and proceedings justly determined.” See IRE 102 Purpose and Construction.

When I had this occur in a trial, I successfully argued that the defense expert is not allow to watch the trial and weigh evidence as this is the sole province of the jury. IRE 702(A) states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Allowing expert to attend the trial and opine is a kin to having a shadow jury. Such a process misleads the jury as to an expert’s true role which is to aid the jury in deciding the case, not supplant them. Trial testimony by the expert could run afoul of Rule 704(B) since the expert would in essence be testifying as to whether a witness (including your expert) testified truthfully by opining after watching all the witnesses testify.  Also, Ind.T.R. 26 requires that the basis and opinion of an expert be seasonably disclosed before the trial. An expert’s opinion would change and morph as the trial progressed. The expert, not the jury, would resolve questions of fact, credibility and the weight to be given witness testimony and items of evidence. Such expert testimony could impair or deprive a party of their constitutional right to trial by jury.

So, what do you think?

Teaching Your Client How to Mind Their Manners While on the Stand


It costs you nothing to be a gentleman or lady.  However, a lack of civility can be very costly.  The manner in which a witness or party testifies is critical to their credibility and understandability to the jury. You want witnesses to testify in a natural manner, but they need to be understood and well received. If you have a witness who talks a mile a minute, then the best way to persuade them that they need to speak in a slower and more measured tone is to allow them to see exactly how they testify.  

I will typically meet with a witness or a client and, through the magic of a cell phone or iPad, record the testimony and then allow them to view it. I then asked the witness or client to tell me what they see and how they would improve such a witness’s testimony if they were in my position. Most people will be a harder critic of themselves than you could ever be.  After we discuss problems with their testimony and their manner of delivery, I covered the same line of questioning again and let them watch the new video.

The only thing a client or witness has absolute control over is their behavior and demeanor.  By emphasizing this point, you can both empower them and relax them.  No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed.  When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same.  A client or witness can tactically overcome this by simply remaining calm and truthful no matter how bad the answer seems to hurt.  

Likewise, the client or witness needs to be cautioned to avoid any sarcasm, insincere or solicitous comments. Remember, this is their chance to make a good impression and show they will be a likeable and empathetic witness to the jury. ​ It’s not their job is not to exchange verbal jabs with the other attorney.  There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.”  Don’t let your client or witness get dirty with the other attorney. Ultimately, they will lose

Witness Outlines: Which came first, the question or the answer…

20140526-183156-66716194.jpg
You getting ready for trial and you are outlining your examination, so how should you do it? What? There is more than one way to outline your questioning? Well, yes… There is.

Buddy Yosha, the Melvin Belli of The Midwest, meticulously outlines his examination and writes out every question and expected answer. He also uses marginal notes to signal general topics of the examination such as background, anatomy, treatment opinions, permanency, future medical expenses and treatment, etc. You get the idea. This system works well for him. Some of the other attorneys in our office have adopted it and have been successful in outlining testimony in this fashion. However, such as system has its drawbacks.

First the outline is very long. I have seen some outlines that have gone well over a 100 pages which can be cumbersome. It is basically a deposition transcript of what you hope to present. When it comes down to studying it, you are lucky to get through it two or three times in a single sitting. It can also lead to the testimony coming across scripted and stiff.

It does the have the advantage of allowing you to fully visualize the expected testimony. If you are pressed for time it can also provide a clear blueprint for the witness’s testimony which would allow a young associate or paralegal to work with the witness and know what to expect as far as the question and answer.

There is an alternative method that I use. I outline the facts I hope to obtain from the witness, in the order I hope to obtain them from the witness. I will write at the top of my outline the legal elements of the claim I expect to cover with the witness (breach of duty, proximate cause, damages, etc.) and list any exhibits by number and description , I hope to cover with the witness. I make the question up as I go. The testimony comes across spontaneous and more conversational.

From my perspective this type of outline can be reviewed multiple times because it is substantially shorter than one which has both the questions and answers. It places the emphasis on your goal, the expected answer, not the question. This forces you to listen to the witness, instead of moving on to your next question. You make up each question as you go which helps you develop the skill of forming questions on the fly. If an objection is sustained, no worry, you simply rephrase the question. It’s second nature to you.

This method forces you to develop the skill of thinking on your feet and adapting rapidly to your opponent’s objections and the Court’s rulings. Most of the time if you rephrase the question, the Court will allow you to move forward. With a scripted witness outline, I have seen attorneys freeze in their tracks when an objection is sustained because they are locked into their script and do not have the requisite skills to rephrase their question quickly. It makes them look like they are struggling and have been hurt by the legal objection. This second method of outlining a list of facts, also keeps you focused on the goal… the witness’s answer.

The only exception to this rule is when you are asking a question which requires information to be loaded into it such as for an expert witness such as a hypothetical question or when words of legal art must be included in the question, such as “Based upon a reasonable degree of medical certainty, what caused Mr. Roger’s numbness in his left arm?”

Hypothetical questions, as noted above, should be written out in advance so that no key facts are omitted. Otherwise your question could be objected to as an incomplete hypothetical or one that either misstates the record.

There is more than one way to outline your examination. Choose the method which works best for you. Both approaches have their advantages and drawbacks. Good luck!

Deposition Preparation Short List

Here is a short list of items to cover with your client the next time you have a discovery deposition:

1. Listen and make sure you understand the question.

2. Stop for five seconds and think.

3. Answer the question.

4. Is there more than one answer that is correct?

5. If there is, then you do not understand the question.

6. If you don't know when to start and and end in terms of the time frame, you don't understand the question.

7. If you try to win your case, then you will lose your case. Don't try to win it. In other words, don't take a good case, try to make it a great case and turn it into a bad case.

8. You don't know, what you don't know. So don't guess or speculate.

9. Keep your hands in lap, hold a paper clip and press the paper clip if you get nervous. Don't fidget.

10. Depositions are not conversations. Listen to the question and answer what's being asked. Do not volunteer information.

11. Don't worry about looking stupid… Ask the other attorney to rephrase the question, if you don't understand the question.

12. Be wary of "box questions" that try to limit you by the words "never, always, none and ever". There are almost always exceptions.

Sometimes, less is more. Keep it simple.

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Trial Post-Mortem

20130912-145745.jpgIf you try cases long enough, you are going to eventually lose a few.  You need to look at losses as an opportunity to improve.   Quite honestly you should learn more from your loses, than your victories.  If your are allowed, you should speak with the jurors and see what they thought was important. You need to check the case and consider:

1.   Jury Voir Dire:  Was a juror biased against your case? Could you have formulated a better question to uncover this bias and possibly exclude the juror.  Were there a problem with your case you could have raised in voir dire to find out who could not treat the evidence fairly?

2.  Prejudicial Evidence or Arguments:  Did the other side present irrelevant evidence or improper arguments?  Even if your objection is sustained, it is often difficult to “unring” that bell. You may be able to head off such arguments or evidence in the future through an motion in limine excluding such evidence or argument.  It might also uncover problem evidence.

3.  Were There Surprises:  Perhaps the opposing party hit you with evidence you missed.  Next time you may be able to head off such problems by doing what your opponent would likely do in investigating the case.  You may need to comprehensively collect and check medical records more carefully and prepare a medical chronology to refresh your client’s memory before questions are incorrectly answered in interrogatories or depositions.  Or perhaps, there are other lawsuits, claims or even criminal convictions your client failed to tell you about in advance of discovery and their deposition.  You may want to hire a private investigator to do a preliminary background check of your client or just do a Google search of your client’s name to see what you might uncover.  You may want your client to give you access to their social media sites to check for potential problems.  Better yet, you can educate your client early on about the importance of being completely honest with you.  There are few problems that cannot be dealt with if you know about them.  It’s the problems you don’t know about that can kill you.  I always tell a client that:  “You don’t want to take a good case, try to make it a great case (through exaggeration or lying) and turn it into a bad case.”

4.  Witness Preparation:  Did you adequately prepare your witnesses or client to testify.   Good testimony requires that you and your client be on the same page.  You need to adequately prepare your client or witness for any landmines that exist and perhaps bring up the problems yourself in voir dire, opening and/or on direct examination to blunt the damaging evidence’s impact.  Video-taping a mock testimony session and allowing your client or witness to critique their own performance can work wonders as well.

5.  Additional Evidence:     Was there a witness you needed to call?  Lay-medical witnesses to paint a before and after picture can go a long way in corroborating your client’s testimony that they were injured in this incident and not from some other event or condition.  Was there an expert whose testimony might have covered a gap or question in your case?  Could a photograph, diagram or model have made your presentation clearer or answered a juror’s doubt?

6.  Jury Instructions:  Were there jury instructions needed to address points of law pivotal to your case and the jury’s understanding of those issues?  Don’t take the easy way out and rely simply on pattern jury instructions.   Review the case-law and formulate your on instructions on nuanced points of law that are difficult for the jury to understand and apply to your case.

7.  Strategy:   Was there something you could have handled better?  Was there a better analogy or argument you could have used to make your point or address your weaknesses?  Was your overall view of the case cohesive and persuasive.  Was your order of witnesses correct?  There are a number of great resources available to you from books about famous trials, closing arguments and trial advocacy.  Don’t reinvent the wheel.  Learn from other’s experience what works and what doesn’t.  Seek out a mentor and pick their brain.  See my earlier post on Fireside Reading for the Trial Attorney.

I hope the thoughts outline above help you in critiquing your “failures” and turning them into an opportunity for improvement and growth as an advocate.

Litigation Against an Organization: Why you need to do a Rule 30(B)(6) deposition.

If you are suing an organization, it is important that you familiarize yourself with the provisions of Rule 30(b)(6).  Rule of Procedure 30(b)(6) provides in pertinent part:

Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

The organization (not you) has the obligation of designating the person or persons needed to adequately answer the questions posed in the various designated areas you wish to ask questions.  You as the deposing party have the burden of meeting the “reasonable particularity” requirement of adequately designating the subject areas of questioning.  The statements given by the person(s) designated by the organization bind the organization as an admission of a party-opponent.

This is not necessarily the case when a statement is given by a low-level employee who is not a “member of the limited liability company”  or officer/director of a corporate organization  since their statements only bind the organization if they are:

1) made within the scope of their authority and

2) the person is still employed and has a relationship with the organization.

Under Rule of Evidence 801(d)(2), “non-hearsay” for the “admission of a party-opponent” is defined as follows:

(d) Statements which are not hearsay. A statement is not hearsay if –

*   *   *

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the party’s agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

A Rule 30(b)(6) declarant/deponent’s answers to questions during the deposition are considered a “statement by a person authorized by the party to make a statement about the subject“.  The organization can only authorize such a statement if the area of questioning has been identified in the deposition notice.  The trick is to make sure your designation of the areas of questioning is specific enough to cover the questions you wish to pursue during the deposition.  Otherwise, the organization is free to argue that they were not authorized to make the statement and bind the organization.  One caveat to this point, is that the organization likely has a duty to raise the objection at the time of the deposition if the problem could have been obviated at the time of the deposition by making a clarification in the question. Rule 32(d)(3)(A) states that “[a]n objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.”

If the opposing party designates the wrong person or fails to prepare them they risk possible discovery sanctions and ill-considered and ill-conceived answers to critical questions in the litigation.    The burden is on the organization to properly prepare and name as many people needed to answer your questions.  It is kind of like obtaining requests for admissions from your opponent on the fly.  It can be very powerful tool you can use to box in your opponent.

Integrity: A Client’s Most Valuable Asset

20120405-011535.jpgClients sometime forget what is their case’s greatest asset. It is not the great photos, their expert witness, or even their attorney. The greatest asset their case has is the Client’s integrity and credibility as a witness. If a claims adjuster, an insurance defense attorney or jury thinks your client is a liar why would they want to give him a dime even if he is hurt? Clients sometimes let the “dark side” enter their hearts and cloud their judgment.
In the Star War’s Movie: The Empire Strikes Back, Luke trains on a remote planet to become a Jedi Knight. His Master, Yoda, tells Luke that fear and anger will pull him to the dark side, and that there is no turning back from the dark side once he embarks on that path.
These same emotions can draw a client towards the dark side. Clients can be fearful, greedy, and angry. Instead of answering questions truthfully, they can be tempted to try and make their case better than it really is in order to get even or because they are afraid of losing. I have long told clients to avoid the temptation to try an improve on the truth by exaggerating their injuries or by lying.
“You don’t want to take a good case, try to make it into a great case, and turn it into a bad case!”
Next time, caution your client to tell the truth, the whole truth and nothing but the truth. Deceit and exaggeration are problems that are almost impossible to solve through trial advocacy. Credibility is the advocate’s most valuable currency in the marketplace of ideas.

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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