Litigation is often contentious by its very nature. But perhaps no aspect of litigation is more contentious than a deposition. While the parties and their counsel typically understand that a certain level of decorum must be maintained in the courtroom, some attorneys believe that anything goes when it comes to depositions.
The informal setting for depositions is only one of many potential causes of incivility. In some instances, attorneys recognize that key deposition testimony can make or break their case and thus will stop at nothing to elicit the testimony desired. In addition, attorneys may feel the need to “put on a show” for their client being deposed by aggressively objecting to opposing counsel’s questions.
In order to emphasize the need to maintain professionalism during depositions, some courts specifically provide that attorneys must adhere to the same standard of behavior as if the proceeding was taking place in the courtroom before a judge. Indeed, both federal and state courts in California have adopted guidelines that specifically address attorneys’ conduct in depositions. For example, the U.S. District Court for the Northern District of California’s “Guidelines for Professional Conduct” provides that “[a] lawyer should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.”
Unfortunately these guidelines are not always followed, as recent cases are replete with examples of attorneys engaging in improper deposition conduct. Sometimes, attorneys draw the ire of courts by asking improper questions or by interposing inappropriate objections. For example, in Funk v. Town of Paradise, the U.S. District Court for the Eastern District of California ordered that certain depositions be reconvened at one party’s expense where its counsel “repeatedly interrupted the [depositions], interjected editorial comments, and coached or suggested information to the witnesses.” No. 2:09-CV-01000-MCE, 2011 WL 2580357, at *2 (E.D. Cal. June 28, 2011).
Other times, however, the contentious nature of depositions leads to arguments in which an attorney makes rude or inappropriate comments to the deponent or to opposing counsel. One such instance occurred recently in Claypole v. Cty. of Monterey, where an attorney engaged in a dispute during a deposition told opposing counsel not to raise her voice because “[i]t’s not becoming of a woman or an attorney who is acting professionally under the rules of professional responsibility.” No. 14-CV-02730-BLF, 2016 WL 145557, at *4 (N.D. Cal. Jan. 12, 2016).
The court admonished the attorney for what was clearly a sexist remark, and noted that it was especially troubling in light of the “male-dominated attitude” of the legal profession. Accordingly, the court sanctioned the attorney by ordering him to make a donation to the Women Lawyers Association of Los Angeles Foundation.
While good sense and professionalism are typically sufficient to avoid similar problems, attorneys can nonetheless avoid getting into hot water for deposition conduct by familiarizing themselves with any applicable rules or guidelines in the particular jurisdiction.
Check Guidelines and Standing Orders
Notably, in ruling that sanctions were appropriate for the attorney’s improper deposition conduct, the court in Claypool specifically relied on the Northern District of California’s Guidelines for Professional Conduct. Although the court observed that the guidelines were normally not intended to serve as the basis for motions, the court concluded that where an attorney “unapologetically flouts guideline after guideline, it is a big deal—and the court has little choice but to do something about it.”
Accordingly, attorneys that ignore such guidelines do so at their own risk. In addition to guidelines issued by the court, some judges also enter standing orders that may specifically address what the judge views as inappropriate deposition conduct. Such orders may provide rules on objections and instructions not to answer, scheduling, introduction of documents and exhibits, and requests for intervention by the court.
Speaking Objections Are Typically Improper
While an attorney defending a witness in a deposition generally has the right to object to questions that are improper (e.g., because they seek attorney-client privileged information), it is improper in most jurisdictions to state objections in a way that coaches the deponent on how to answer. It also is generally prohibited for attorneys to provide information via their objection that essentially amounts to testimony being provided by the defending attorney.
For example, Federal Rule of Civil Procedure Rule 30(c)(2) provides that “an objection must be stated concisely in a nonargumentative and nonsuggestive manner,” while state courts typically contain similar provisions regarding the proper form of objections.
Instructing the Client Not to Answer
The Los Angeles Superior Court’s “Guidelines for Civility in Litigation” provide that an attorney “should not direct a deponent to refuse to answer questions unless they seek privileged information or are manifestly irrelevant or calculated to harass.” Federal Rule of Civil Procedure Rule 30(c)(2) similarly provides that an attorney may instruct a deponent not to answer only when necessary to preserve a privilege or in other limited circumstances.
However, even when a privilege is claimed, standing orders often instruct that the witness should nevertheless answer questions relevant to the existence, extent, or waiver of the privilege, such as the date of the communication, who made the statement, to whom and in whose presence the statement was made, other persons to whom the contents of the statement have been disclosed, and the general subject matter of the statement, unless such information itself is privileged.
When attorneys engage in improper deposition conduct, courts are typically free to impose sanctions as they see fit, as reflected by the order to make a charitable donation in Claypool. For more severe misconduct, courts can even order that a party is deemed to have waived certain claims or defenses. However, more common is an order requiring the offending attorney to pay the other party’s reasonable attorney fees and expenses.
Such sanctions are rarely worth any perceived advantage from engaging in overly-aggressive deposition conduct. Instead, by reviewing any applicable court rules and standing orders, attorneys can make sure to stay within the lines while remaining a zealous advocate on behalf of their client.
Shari L. Klevens is a partner at Dentons US and serves on the firm’s US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons’ global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014). Alanna Clair is a partner at Dentons US and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.” This article was prepared with assistance from Craig Giometti, an associate at Dentons US LLP.