Conduct enough depositions and you’re bound to see abusive tactics by some opposing counsel. Here are five ways to effectively deal with the most common abuses attorneys experience during depositions.
Deposition abuse comes in many forms. Some counsel take advantage of the absence a judicial officer by engaging in obstructive behavior, like making numerous frivolous objections and calling frequent recesses to supposedly consult with a witness while really coaching him or her. Abusive counsel may also display blustering, angry behavior that they would never dare show in court.
Here’s what to do if you encounter deposition abuse:
- Remain unruffled. Don’t allow yourself to be baited by opposing counsel. If the opposition is guilty of misconduct, firmly but courteously note it and continue the deposition.
- Get it on the record. If opposing counsel improperly instructs the witness not to answer, you could terminate the deposition to seek relief from the court. But that doesn’t do much good if there are still questions to ask. It’s better to insist on an answer or an instruction not to answer, and go on to complete the deposition. Have the reporter mark all instructions not to answer to use in court later.
- Go off the record. Counsel make speeches “for the record” to impress the witness or a client, or simply to blow off steam. You can limit these pointless speeches by going off the record for informal conferences to resolve differences. Then, go back on the record to briefly describe resolution of the differences, or the reasons for each party’s position.
- Video it. If you anticipate abuse, consider video recording the deposition. Videoing has a calming effect; abusive attorneys know the camera will record every sneer or angry tone.
- Get the court involved. Ultimately, the most effective solution for deposition abuse is a firm supervising court. More and more courts allow counsel to schedule a telephone conference with a judicial officer to resolve discovery disputes. If cost isn’t an issue, consider having a referee or special master attend selected depositions and make immediate rulings subject to later court approval. If the abuse is relentless, you can tell opposing counsel that, unless the abusive tactics stop, you’ll adjourn the deposition to get a protective order from the court.
These tips and many others for taking and defending depositions are found in CEB’s California Civil Discovery Practice. Also check out CEB’s Handling Depositions for a step-by-step guide through the deposition process.
Other CEBblog™ posts you may find useful:
- 4 Preliminary Questions for Every Deposition You Take
- Who May Attend a Deposition?
- I Object! Know What Objections to Make at a Deposition
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