Depositions, which exist in trial-like settings but are not under the watchful eye of a judge, can be ripe for attorney misconduct. Common examples of deposition misconduct that can be subject to sanctions include making excessive objections, improperly instructing the deponent not to or how to answer a question, and inappropriately conferring with the witness about the substance of her answers. Despite the adversarial nature of litigation, deposition misconduct can also occur when lawyers “go too far” and behave in a hostile or otherwise abusive manner.
Emotions can run high in depositions. Stressful situations can beget stress-induced conduct, which can lead to sanctions. Here are some tips for defending attorneys to consider before depositions to help ensure that they do not veer into unethical territory.
Stress Truthfulness to the Witness When Preparing for the Deposition The comment to Rules of Professional Conduct 3.3 provides that lawyers’ duty of candor extends to proceedings “conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.” The comment further provides that the rule “requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.” Rules of Professional Conduct 3.3, commentary.
In light of this rule, many attorneys will take care to stress to their clients or witnesses the importance of testifying truthfully at a deposition. Although rare, it is possible that witnesses (or the parties on whose behalf they are testifying) can be sanctioned for impeding the examination or for offering untruthful answers.
Nevertheless, even the most prepared witness can become frustrated or flustered during a deposition as a result of opposing counsel’s questions or attitude. Recognizing this reality, many attorneys will spend ample time preparing the witness for this possibility and offering some tools for coping with aggressive questioning or a stressful environment. Attorneys can also object during a deposition if the questioning attorney is being abusive (although attorneys must balance that against the general rule against making “speaking” objections). Despite the most well-laid plans, an attorney may have to regroup with the witness during the deposition, within the parameters of the rules governing conferences during a deposition, as discussed below.
Permissibility of Conferences With Witnesses in Deposition Whether attorneys may confer with a witness during a deposition generally depends on the jurisdiction. Some states follow the seminal case of Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), in which the court provided that attorneys should not be allowed to confer with the witness for the duration of the deposition. It reasoned that, “private conferences … tend … to give the appearance of obstructing the truth.” Id. at 528. In those jurisdictions, an attorney may be essentially powerless to assist the witness during the deposition and breaks, except for issues of privilege, so predeposition preparation may be of even greater importance.
Even in jurisdictions where conferences are generally permissible during breaks in depositions, however, most attorneys will take care not to confer with a witness while a question is pending, as that may have the appearance of improper coaching of the witness. Advising a witness in this way, while a question is pending, can result in sanctions. Typically, there is a general exception to that rule for when the attorney in good faith needs to consult with the witness to determine whether an objection for privilege should be made.
Changing Answers When Necessary As addressed above, attorneys may have an ethical obligation to take remedial measures to correct testimony supplied during a deposition that the attorney knows to be false. A different issue arises in the context of witnesses who seek to amend or supplement their testimony by means of an errata sheet or similar procedure.
The majority approach to interpreting Fed. R. Civ. P. 30(e), including in Connecticut state and federal courts, is that witnesses can issue corrective testimony to make literally any change, including to contradict the answers they gave under oath. Typically, in those jurisdictions, the ultimate trier of fact may be permitted to review both answers to determine, contextually during the course of trial, which is more reliable. Some jurisdictions, however, require a showing that the witness was confused or has some other reason for a contradictory answer. See, e.g., EBC v. Clark Bldg. Systems, 618 F.3d 253, 270–71, 77 Fed. R. Serv. 3d 421 (3d Cir. 2010). For those courts, corrective changes are typically limited to the correcting of typos or transcription errors.
The Connecticut courts have also permitted witnesses to make “material and substantive changes” to deposition testimony, but will impose costs when the deponent fails “to provide specific reasons for the change.” See Elisea v. CFC Stillwater, No. CV146044056S, 2015 WL 6144085, at *11 (Conn. Super. Ct. Sept. 15, 2015) (citing both Practice Book §13–30(d) and Federal Rule 30(e)). Moreover, because the changes proposed for the existing testimony can “destroy the usefulness of the deposition,” a court may order sanctions, including that additional depositions would be conducted at that party’s defense. In Elisea, the court also followed the federal practice of requiring that the original answers remain part of the case’s record. Id.
By keeping mindful of a party’s—and an attorney’s—obligations not to engage in unethical conduct during depositions, attorneys can help ensure that the case will be considered on its merits, rather than impacted by sanctions or other issues.
Alanna G. Clair is a partner at Dentons US in Washington, D.C., and focuses on professional liability defense. Shari L. Klevens is a partner at Dentons US in Atlanta and Washington, D.C., and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chairwoman of Dentons’ global insurance sector team. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”