Vol. 10, No. 1, Pg. 20. Just Say No to Deposition Coaching.

• Author: By J. Stephen Welch

South Carolina Lawyer

1998.

Vol. 10, No. 1, Pg. 20.

Just Say No to Deposition Coaching

20Just Say "No" to Deposition CoachingBy J. Stephen WelchThe witness has apparently not realized that your previous questions have been leading up to the crucial inquiry that comes next. You ask the key question. But rather than the witness giving an "answer," you are greeted by an "objection" from opposing counsel carefully worded to guide the witness.

Even worse, in certain depositions opposing counsel not only objects, but also asks the witness if he or she wishes to "take a break." In an extremely underhanded move, the witness will be prepared by certain lawyers to request a break at crucial moments, with the purpose clearly being to discuss strategy. As a result, many depositions truly fail to provide testimony from the witness. Rather, depositions turn into a form of "guided" testimony that tends to circumvent the real purpose of a discovery deposition--to find the truth.

Fortunately, this should no longer happen in the federal system. Many lawyers are familiar with the orders of federal judges, such as the Hon. Ross Anderson, who enforced the 1993 additions to Fed.R.Civ.P. 30 early. The changes in Rule 30 were made, in part, to curb the deposition abuse noted above. The addition of subpart (d)(1) provided that:

Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.

The purpose of this amendment was explained in the Advisory Committee Notes as follows:

Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond. While 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 the time . . . . such as the form of the question . . . . Under Rule 32 (b), other objections can, even without the so called "usual stipulations" preserving objections, be raised for the first time at trial and therefore should be kept at a minimum during a deposition.

See Advisory Committee Notes, 146 F.R.D. at 664.

Even prior to the formal adoption of the changes to Rule 30 in 1993, the proposed amendments had been used to establish limitations on deposition abuse by various courts. One of the most prominent cases setting out these limitations was Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.Pa. 1993). In Hall, 150 F.R.D. at 528, the court stated:

A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness's own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. The witness comes to the deposition to testify, not to indulge in a parity of Charlie McCarthy, with lawyers coaching or bending the witness's words to mold a legally convenient record. It is the witness--not the lawyer--who is the witness. As an advocate, the lawyer is free to frame those facts in a manner favorable to the client, and also to make favorable and creative arguments of law. But the lawyer is not entitled to be creative with the facts. Rather a lawyer must accept the facts as they develop.

Several courts have put it much more bluntly. Federal courts have adopted rules stating that a lawyer's participation and intrusion into the questioning process during a deposition should be no more intrusive than would be allowed during an actual trial sitting before the judge and court reporter. See Armstrong v. Hussman Corp., 163 F.R.D. 299, 302-304

(A) Witnesses are to be instructed to ask only the deposing counsel for clarifications, definitions or explanations of any words, questions or documents.

(B) All objections, except those waived under Fed.R.Civ.P. 32(d)(3), or those going to privilege or court ordered limitations on evidence, are preserved.

(C) Counsel cannot direct a witness not to answer a

22question unless the answer is protected by privilege, a court ordered limitation, or counsel intends to present a Rule 30(d)(1) motion. Counsel has an affirmative duty to instruct his or her client to answer.

(D) No objections or statements which in any way suggest an answer to the witness will be allowed.

(E) No private, off-the-record conferences are allowed during depositions or during breaks regarding the substance of deposition testimony.

(F) Deposing counsel is entitled to inquire, on the record, as to whether there has been any witness coaching and to define the extent of any coaching that has occurred.

(G) Defending counsel has a duty to document on the record any conference with his or her witness allowed under Local Rule 30.04(c).

(H) If documents...