Deposition Strategies And Tactics

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.” 
Continue Reading Can A Lawyer Interrupt A Deposition For A “Conference” With A Witness?

About two weeks ago, a deposition Paula Deen gave in the midst of an employment discrimination lawsuit became public. To say she burned her roux would be an understatement. I’ll leave to others the race and media issues: there’s plenty for us to explore as civil litigators, and much to learn from a disastrous celebrity deposition going public.

Criticism of Deen’s lawyers has already begun. Jack Chin at PrawfsBlawg concludes “Paula Deen’s participation in a deposition where everyone knew that she would say the things that she said reflects such catastrophically bad judgment that it is almost inexplicable,” suggesting Deen’s lawyers should have urged her to settle in advance of the deposition.

Surely all lawyers, plaintiffs’ side and defendants’ side, should keep their clients apprised on the risks of proceeding with litigation and the benefits of settlement, and I sure hope Deen’s lawyers advised her of the risks. That said, as a plaintiffs’ lawyer I can tell you that few plaintiffs’ lawyers will settle significant cases in advance of the defendant’s deposition for anything less than their highest demand. It’s possible Deen offered the plaintiff a fair and reasonable settlement, but the plaintiff held out for the whole stick of butter, not a dollop less.
Continue Reading Could Paula Deen’s Lawyers Have Prevented Her Deposition Disaster?

Updated June 11, 2019

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