Two weeks ago, I attended the Pennsylvania Bar Institute’s Federal Bench-Bar Conference, which featured a panel discussion on “Ethical Issues During Depositions: Hypothetical Scenarios.” The panel included two federal judges and two Fellows of the American College of Trial Lawyers.
The panel raised a number of interesting issues. It also tried to tackle the vexing questions of how, exactly, you stop an opponent from obstructing your deposition and how you identify and prevent manipulation of a witness’s testimony. Deposition misconduct and discovery obstructionism are subjects I’m keenly interested in (and subjects I’ve spoken on as part of an ABA panel), so I had to go.
Before we get into the substance, let’s discuss a bit of background. Most of my writings on the subject are gathered in this post on deposition preparation, along with links to others’ reactions. An ABA article (“Ethical Preparation of Witnesses for Deposition and Trial”) a few years ago summarized the general ethical considerations at play:
A lawyer has a duty to prepare a witness to testify. This preparation may include discussion concerning the application of law to the events in issue. But “[a]n attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Geders v. United States, 425 U.S. 80, 90 n.3(1976); Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993). Thus, the prohibition of counseling or assisting a witness to testify falsely also applies to the influence that an attorney may have on the substance of a witness’s testimony in the preparation process.” An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way.” Ibarrav. Baker, 338 F. App’x 457, 465 (5th Cir. 2009) (citing John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277(1989)).
Now, let’s get back to the substance of the panel. The most interesting part to me was the discussion over when a lawyer can stop a deposition, despite a pending question, to speak with their client. We’ll call this a “witness conference.”
As I’ve written before on this blog, the most frequently cited case on 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), there are literally hundreds of cases citing it, and it’s rare to see a thorough decision on witness consultation that doesn’t discuss Hall.
More specifically with regard to mid-deposition conferences, Hall imposed a demanding standard, one that many courts have followed. Under the most vigorous interpretation, “Once a deposition has commenced, an attorney is not permitted to confer privately with the witness, unless the sole purpose of the conference was to determine whether to assert a privilege.” Wise v. Washington County, C.A. No. 10-1677 (W.D. Pa. March 7, 2014)(citing Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527, 535 (M.D. Pa. 2002) (“[A]ny such conference is not covered by the attorney-client privilege and that the deposing attorney is therefore entitled to inquire about the content thereof.”) and citing Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993)). That’s, in my opinion, the correct rule for most situations. It’s also, in my anecdotal experience, the most common version given by lawyers in their instructions at the beginning of the deposition, e.g., something like “we can take a break whenever you like, unless there’s a question pending.” The reason is obvious: you don’t want the witness to go out and have ‘brain surgery’ or ‘woodshedding’ done on them by their lawyer, thus feeding them a legally-perfect answer instead of a truthful one.
I know there’s disagreement over Hall, but, to my surprise, the entire panel agreed that Hall had gone much too far in precluding lawyers from consulting with their clients mid-question. All agreed that a more permissive standard was warranted. One of the judges raised due process concerns, and pointed out that, if, during a criminal trial, he precluded a criminal defendant from conferring with their lawyer — even if the defendant was testifying on the witness standard — such would be a reversible error requiring a new trial. Others echoed the concern, in different ways.
It’s not as though the panel felt that witness coaching was acceptable. The whole panel readily agreed that it was improper for a lawyer to coach the witness by way of speaking objections, and they spent some time discussing tactics for dealing with the obnoxious strategy, used by more than a few lawyers of low ethics, of blurting out “if you know” or “objection: calls for speculation” as a means of coaching the witness to claim ignorance. But if it’s not okay for a lawyer to coach a witness on the record by way of an objection before they answer a question, how could it be okay for the lawyer to demand a break and then, in complete secrecy, coach the witness? Seems to me the latter situation is far more prone to abuse.
To me, the due process issue is a fair point to raise, but it misses the crucial distinction between conferences requested by the witness and conferences demanded by the lawyer. If a witness requests to speak with their lawyer before answering a question, then (1) I agree they do indeed have a right to consult with their attorney but (2) the substance of the conference is not privileged unless the witness comes back in and asserts a privilege and (3) because the witness demanded the conference, the opposing party can later use that fact in cross-examination.
Here’s an example: assume in a workplace injury case the lawyer for the worker asks the safety director, “so are you ultimately responsible for safety at the site?” Before answering, the safety director asks for a witness conference with their lawyer. When they come back in, they say, “I don’t understand the legal meaning of ‘ultimate’ and ‘responsible’ and thus I cannot answer your question,” and, when further examined about the conference with their lawyer, they say they only discussed with the lawyer the scheduling of the deposition. In that case, the lawyer for the worker has an obviously disingenuous and patently false answer that he or she can use at trial to devastate the witness’ credibility.
The same isn’t at all true when a lawyer interrupts the deposition and demands a witness conference. In that situation, the witness will invariably come back and explain that they don’t know why the lawyer interjected, and that they had an innocuous conversation in which the witness gave to the lawyer exactly the same answer they’re giving now. It’s very difficult to use cross-examine at trial to defeat that tactic, because the witness can plausibly deny any role in the setup. The problem is that the lawyer, rather than the witness, has created the opportunity for coaching, and it’s difficult at trial to hold witnesses accountable for what their lawyers did.
Thus, in my humble opinion, although a witness has a due process right to consult with their lawyer mid-question, their lawyer has no right to raise it. Like a criminal defendants’ assertion of Miranda and request to speak with a lawyer, it’s something that has to come from the witness, not a lawyer. Anything else is an invitation for mischief.