Be A Potted Plant: Sanctions For Deposition Coaching and Witness Conferences
During the Iran-Contra hearings, Brendan Sullivan, a senior partner at Williams & Connolly (I wrote more about them here) who represented Oliver North, famously responded to Senator Daniel Inouye’s criticism of Sullivan’s repeated objections during the Congressional hearings with “Well, sir, I’m not a potted plant. I’m here as the lawyer. That’s my job.”
The rules for Congressional hearings, though, are a bit different from the rules for a deposition in civil litigation in federal court. Federal Rule of Civil Procedure 30(c)(1) is quite clear: “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence …” If an attorney has an objection to a question, then what they must do is also quite clear under Fed. R. Civ. P. 30(c)(2):
An objection at the time of the examination–whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition–must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
That is to say, the defending attorney is indeed a “potted plant” with only two exceptions: they can raise objections in a concise, nonargumentative and nonsuggestive manner, and they can instruct a deponent not to answer a question when necessary to preserve a privilege or enforce a court order.
No attorney would, in the middle of their client’s cross-examination at trial, loudly clear their throat and say “if you know” or “don’t speculate” before the client answers. You don’t have to be a lawyer to see that as little more than an attempt to coach the witness into claiming they don’t know something that they actually do know.
Similarly, no attorney would ask to stop their client’s cross-examination at trial right before the client says something important then take the client out in the hall and instruct the client to claim they forgot.
But this sort of nonsense happens all the time in civil litigation:
“When asked to name that person to whom she had referred, she said ‘I don’t want to use the name. I can’t do that.’ At that point, Mr. O’Connor objected that the question called for speculation ‘unless she has, you know, clear information on this.’ … She was again asked for the name, if she had one. She did not say that she did not have a name in mind or that her prior testimony about a particular broker was somehow inaccurate.
Instead of allowing the witness to answer the question, Mr. O’Connor interrupted and informed the examiner that he wanted to confer with his client and immediately left the deposition room with Ms. Finke. No explanation or justification was even attempted by Mr. O’Connor. …
“The conference lasted almost a half hour. In the dialogue that followed with the examiner, Mr. O’Connor apologized for the length of the interruption but said pointedly that if he felt it necessary he would again interrupt the deposition to have further conferences with his client. When the question about the identity of the person whom Ms. Finke had in mind in her earlier testimony was asked again, Mr. O’Connor asked the examiner to ‘suspend this line of questioning regarding this issue until later in the deposition so that I can speak to my client and his personal counsel regarding testimony thus far.’ Counsel for the plaintiff said that he intended on asking the question again.
Before he could even do so, Ms. Finke chimed in, ‘I feel I was speculating, I don’t feel I was — I don’t feel what I said was correct.’ She then volunteered, ‘I was speculating’… ‘I mean, I don’t have any hard evidence.’ She then repeated that same line. When asked again for the name of the person to whom she had referred in her earlier answers, she said ‘I don’t have any hard evidence, and I misspoke.’ She conceded that she had ‘a few brokers in mind,’ but she had ‘speculated. I saw no hard evidence of anything.’
When asked again for the name, she refused, taking her cue from Mr. O’Connor’s argument that the question called for speculation and seemingly from what occurred at the improper conference convened by Mr. O’Connor, she said she would not answer, ‘because I was speculating. I absolutely saw no—’ Before she could continue, Mr. O’Connor instructed her not to say anything else. Counsel for the plaintiff asked that O’Connor not cut off the witness while she was testifying. Ms. Finke conceded that it certainly looked ‘kind of odd’ for the sudden switch in her testimony coming as it did on the heels of her conference with Mr. O’Connor, but denied that it was because of instructions from O’Connor. Stymied, counsel for the plaintiff was forced to move on.”
Who did the defense lawyer think they were fooling?
Not Magistrate Judge Jeffrey Cole, who promptly sanctioned them:
The conduct reflected on the record of the deposition is indefensible under Rule 30, Federal Rules of Civil Procedure. Even Mr. O’Connor’s stand-in at the motion to compel, while attempting to defend what occurred and denying that there was any impropriety, because ‘he knows Mr. O’Connor,’ conceded that it was difficult to try to defend what had occurred. Of course, overt instructions to a witness not to answer a question are improper absent a claim of privilege, Redwood v. Dobson, 476 F.3d 462, 468 (7th Cir. 2007); Rule 30 (c)(2), and coaching a witness during the deposition is equally prohibited — see e.g., Woods v. Ramsey, 199 F.3d 437 (5th Cir. 1999); Lee v. Wal-Mart Stores, Inc., 2011 U.S. Dist. LEXIS 20461, 2011 WL 796784 (E.D.Va. 2011); Rule 30 (c)(2)(Objections are to be stated ‘concisely and in a nonargumentative and nonsuggestive manner’) — although this sort of conduct continues to be prevalent in depositions.
The most disturbing aspect of O’Connor’s interruption during a critical point in the questioning of Ms. Finke is what occurred after the deposition resumed. Ms. Finke had been prepared to name the person whom she at least believed may have been involved in the impropriety that was the subject of the questioning. Following Mr. O’Connor’s almost half-hour conference with Ms. Finke, her testimony underwent a radical change. That it did, certainly appears to be attributable to Mr. O’Connor’s efforts. What Justice Frankfurter said in Avery v. Georgia, 345 U.S. 559, 564, 73 S. Ct. 891, 97 L. Ed. 1244 (1953) (Frankfurter, J., concurring) seems to apply perfectly here: ‘The mind of justice, not merely its eyes, would have to be blind to attribute such an occurrence to mere fortuity.’ See also United States v. Rodriguez, 975 F.2d 404 (7th Cir. 1992); Coggeshall v. United States, 69 U.S. 383, 17 L. Ed. 911 (1865).
There are a fair number of district court opinions granting sanctions for the failure to lodge objections in a “nonargumentative and nonsuggestive” manner, and I know of two Circuit Court opinions affirming the same, Lamex Foods, Inc. v. Audeliz Lebron Corp., No. 10-1677, 2011 U.S. App. LEXIS 13078, at *33 (1st Cir. June 27, 2011)(“[Witness] was obstructionist and hostile to Lamex’s counsel’s most benign questions. … [Witnesses] had no grounds to believe that the deposition was limited in scope.”) and Craig v. St. Anthony’s Med. Ctr., 384 Fed. Appx. 531, 533 (8th Cir. 2010)(“Our review of the relevant deposition reveals a substantial number of argumentative objections together with suggestive objections and directions to the deponent to refrain from answering questions without asserting a valid justification under Rule 30(c)(2). The record reflects ample support for the district court’s finding that [counsel] impeded, delayed, or frustrated the deposition. The $1,000 sanction was not an abuse of discretion.”).
As for the conference with the witness, the “grand-daddy of all cases on this question,” as Drug and Device Law said in a post discussing witness conferences, is Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). Although Hall is unreported (a copy is available here), consider the hundreds of cases citing it.
Hall draws a bright-line no conference rule, but, as the D&D folks conclude, most courts take a softer approach, which they boil down to a continuum: “conferring with the deponent while a question is pending is asking for trouble,” but once you get to “conferring over lunch or other breaks during the deposition taken for unrelated reasons is more likely to be viewed as OK.”
There’s isn’t really a solid rule one way or the other: the real issue is if, as Magistrate Judge Cole quoted, “The mind of justice, not merely its eyes, would have to be blind to attribute such an occurrence to mere fortuity.” If the conference appeared to have altered the testimony of the witness, then you’re in trouble. If not, then not.
All of which goes back to the issue of what a lawyer should do in advance of a deposition anyway. As Susman Godfrey distills their approach to depositions,
Defending lawyers are not supposed to talk during depositions. Courts are sanctioning those that do. If the witness is well prepared, there is nothing for the defending lawyers to do but listen proudly. By involving the most experienced lawyers in witness preparation, we often are able to trust deposition defense to lawyers with lower billing rates.
Indeed. There are only two instances in which a lawyer “needs” to coach a witness or take them out for a non-privilege conference:
- where the lawyer did a poor job preparing the witness for the deposition, leaving the witness so confused about the questions and their own testimony that they start giving inaccurate or incomplete answers; or,
- where the lawyer is encouraging the witness to perjure themselves.
#1 is bad lawyering, plain and simple. #2 is patently unethical.
In other words, as unfortunate as the image of a “potted plant” may be for a zealous advocate, it beats the alternatives of being a bad lawyer or an unethical one.