Some attorneys treat defending a deposition as an opportunity to be a jerk. Speaking objections, witness coaching and bogus instructions not to answer are all arrows in the quiver of the “Rambo” litigator. The Federal Rules of Civil Procedure, their state equivalents and the rules of professional conduct generally prohibit this conduct. The Federal Rules, for example, expressly authorize district courts to impose sanctions for this type of behavior. Indeed, since Rule 30 was amended in 1993 to add an express prohibition on this conduct, federal courts throughout the country have demonstrated a willingness to crack down on these tactics.

Less discussed is the responsibility of an attorney defending a deposition to affirmatively intervene to prevent their witness’ misconduct. Although there are relatively few cases that address the issue, they make clear that counsel has an obligation to take affirmative steps to protect the integrity of the deposition by reining in their own Rambo witnesses.