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How to Handle Improper Coaching at Deposition

One of the common problems at deposition is improper coaching of the deponent by counsel. If you’re the examining attorney, there are three steps you can take to handle this situation.

Improper coaching of the deponent generally occurs in one of these two situations:

  • Defending counsel interjects commentary after the examiner’s questions, or objects to questions in a way that suggests a particular response to the deponent.
  • The deponent repeatedly confers privately with defending counsel before answering a question.

These situations can be addressed by taking the following three steps:

1. Anticipate problems. Anticipating such problems as unreasonably frequent interruptions for conferences between defending counsel and the deponent can often prevent them. You can try something as simple as announcing, as the deposition begins, that two short recesses will be taken, e.g., at 10:00 a.m. and 11:00 a.m., to avoid recesses for private conferences at the whim of the deponent or defending counsel.

2. Start with a warning. If interjected commentary by defending counsel or frequent conferences are a problem, warn the deponent and defending counsel that their conduct will make it necessary to adjourn the deposition to enable you to move for a protective order. See CCP §2025.420.

3. Make a record. If a warning doesn’t stop the improper coaching, work on making sure that the evidentiary record will support a motion for a protective order. For example, if private conferences between the deponent and defending counsel become so frequent that they interfere with your ability to obtain testimony, state on the record the time that each conference begins and ends.

Coaching the witness generally occurs when the defending counsel is representing a party deponent. But a situation similar to both “coaching” and “instructing the witness” can also occur when the deponent is a nonparty appearing without counsel at the deposition. For example, counsel in Sabado v Moraga (1987) 189 CA3d 1 gave advice about the marital privilege to an unrepresented witness and as a result, the deponent refused to testify. The appellate court reversed an award of sanctions under CCP §128.5 based on counsel’s advice, but stated that sanctions might be justified “if an attorney offers meritless legal advice to a witness which results in a delay of the proceedings.” 189 CA3d at 9. Although the defending counsel in Sabado had no duty to notify the examiner before the deposition of his intention to advise the witness on the marital privilege, the court observed that professional courtesy might have dictated otherwise. 189 CA3d at 11.

For everything you need to know about taking and defending depositions, turn to CEB’s California Civil Discovery Practice, chap 6, and Handling Depositions (Action Guide). Learn how to how to prepare yourself to depose a witness confidently and remain ethical and professional throughout the process in CEB’s CLE program Preparing for and Taking a Deposition, available On Demand.

Check out these other CEBblog™ posts on depositions.

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

7 Responses

  1. What authority allows the attorney noticing the deposition to limit the number of recesses or time for recesses at the start of the deposition? It is up to the witness providing testimony under oath when he/she wants to take a recess.

    • This point is a practice tip; it’s advice, not a statement of law. The suggestion is a tool that an examiner can try and hope the other side accedes.

      • That may happen if the other side does not understand the rules of civil procedure. As the attorney for the witness I would not agree that the other side can decide when my client can take a recess. CCP §2025.420 motion for protective order should be avoided since it likely will result in an award of sanctions against the unsuccessful party.
        Another way to avoid coaching a witness if you are anticipating such problems is to try to arrange before the deposition to have a discovery referee available on phone standby to rule on objections, etc at the deposition.

      • Thanks for adding another suggestion, James.

  2. In New Jersey, sworn witnesses who consult with counsel during breaks are not afforded the attorney-client privilege and the examiner may question the deponent upon return from the break. Is there no similar rule in California? Also, I found laying a groundwork at the outset with regard to questions always helped. For example, I would say, “In the event any of my questions are confusing or phrased in a way you cannot understand, I ask that you not answer, tell me, and allow me to rephrase it. If you answer any question I ask, I will assume you understood it. Do you understand this instruction?” If an attorney objects too much, I would allow him a “standing objection” so as to not interrupt the flow- let him make his ridiculous motion later. Again, I’m not sure this is allowed in California. Thanks for the article!!

    • We don’t know of any California authority on whether the attorney-client privilege applies to conversations during deposition breaks, but it likely applies to these conversations unless the attorney is coaching the witness in her/his answers.

      Thank you for your helpful suggestion about laying a groundwork for the witness on not understanding questions. It’s also common in California to allow a standing objection so that the deposition testimony can proceed and a judge can decide whether to allow certain questions and answers later.

    • Sarah Major, I cannot think of any situation under California Civil Procedure where opposing counsel can question my client on the contents of a conversation protected by the attorney-client privilege. Counsel can certainly comment on the record that a witness at deposition was seen speaking to counsel during a break but not inquire as to what was actually said.
      As the deposing attorney you can create a record that the witness took repeated breaks to confer with counsel with a question pending. That would certainly raise questions about the witness veracity under oath. I don’t think that you really need to know what was actually said.

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