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?