It is half past noon and with some pep in your stride, you accompany your client—a midlevel corporate executive—from a well-deserved lunch back to a law firm conference room to resume his deposition. Along the way you spot your adversary glancing in your direction from across the hall, when your client furtively remarks, “I hope I don’t regret having ordered the chili bowl.” With a comforting smile, you turn and offer a reassuring response. As everyone takes their seats back in the conference room, the court reporter nods and announces that you are back on the record. Without missing a beat, your adversary leans over the table and snipes: “So, did you discuss anything with your attorney during the lunch break?” Your client’s face suddenly appears flushed, and with both hands on his stomach, he turns to you: “Do I need to answer that?”

Depositions can and often do go awry when one or both sides are unfamiliar with the rules governing deposition practice. Indeed, case law abounds with examples of such persistent issues as communications between attorney and witness, sanctionable conduct, making and ruling on objections, and when to compel the continuation of a deposition. This article explores these issues and more on attorney conduct during depositions.

Communications With the Witness