On Thursday, I was on a CLE panel for the American Bar Association’s “Torts and Insurance Practice Section” annual leadership retreat at the idyllic Palm Springs, where we (two state court trial judges, one federal magistrate judge, a defense lawyer, and yours truly) discussed a mix of discovery practice. As described by the ABA TIPS website:
We are also offering a Professionalism and Ethics CLE session on Thursday afternoon immediately before our Welcome Reception entitled: “Through the Looking Glass: What Lawyers Can Learn From Judges and What Judges Can Learn From Lawyers”, where a distinguished panel of lawyers and judges will discuss the deposition practice under the Federal Rules limiting objections, including how lawyers can effectively represent their clients while also complying with the rule and how judges and lawyers characterize compliance. The judges on our panel also will comment on the behavior they observe during the discovery process and provide guidance about ways that lawyers can improve the process, when judicial intervention is or is not necessary, and how judges respond to lawyers’ inappropriate conduct. In addition, the panelists will discuss how lawyers can work cooperatively and professionally with opposing counsel and what judges want to see from lawyers — and lawyers want to see from judges — to promote civility in the courtroom.
My contribution to the written materials was this prior post of mine about sanctions for coaching witnesses in depositions. Judge Jeffrey Cole, author of one of the opinions I discussed at length in that post, was on the panel, which was a thrill for me, and he was as enthused, energetic, and accurate (“read the statute, read the statute, read the statute”) as you would expect from his opinions.
The conversation wandered, as all good discussions of law wander across scenarios with consistent themes, through depositions, motions, ethics, sanctions, and what to do in troubling situations. As we seemed to agree (at least in my view), much of the sanctionable and otherwise inappropriate conduct by counsel arises not from an intentional decision to conceal evidence in a particular case, but from mindless clinging to default obstructionist tactics that they use in all cases. These lawyers start cases in a “NO” posture, which can escalate to sanctionable conduct when it causes needless objections, a failure to produce evidence or honest testimony, and, finally — after the obstructionism has persisted long enough — an irreversible situation that is impossible to explain away.
One troubling situation raised by an audience member (who, from the context given in the question, was likely a defense lawyer, as are most of the active members of the ABA) involved a client you’re defending at a deposition saying something that you know to be incorrect. What do you do then?
Let’s start with the basics. Unless it’s a truly minor issue where the witness is simply making a mistake — e.g., citing the wrong page of something, or recounting the wrong year of an event — you should not jump in and correct the client. Your duties of loyalties and confidentiality preclude you from doing that; it’s their decision, not yours, as to how they remedy the problem. (We’re assuming there’s no “crime / fraud” exception here, but that provides for optional disclosure, and it’s hard to see when it could apply anyway in a normal civil deposition.)
But staying silent has its problems, too. As a matter of ethics, you are precluded by your duty of candor to the tribunal from suborning perjury. Even if the mistaken issue seems minor to you, the mere fact that you know the client to have given false testimony may preclude you from using any of their testimony in the future, even unrelated testimony, even for what may feel like innocuous purposes. As a matter of strategy and tactics, as I pointed out to the audience member (with a number of heads nodding in agreement), if your opponent catches the witness in a significant misstatement, odds are good they will use it to impeach your client and, quite understandably, to brand them as a liar.
To me, the proper course is to try to have the witness remedy the problem themselves, in as transparent a manner as possible. If the answer fundamentally changes the testimony that will likely follow, then request a break right then; if not, you can wait until the next natural break. There, point out the mistake to the client, see if that refreshes their recollection — or if it reveals to them that they weren’t really sure of their answer — and then instruct the client to go back in, go on the record, and tell the opposing counsel that, over the break, their lawyer reminded them of the discrepancy and so they would like to correct it. Then, you have a nice, clean record of what happened, have saved your client from perjury and impeachment.