The justice system relies on attorneys, parties, and litigants following some basic and fundamental rules. Tell the truth. Give complete answers. Produce documents and answer questions when appropriate. Depositions seem to be one of the areas that is open for abuse, both from the party or witness being deposed and the attorneys participating. Attorneys can help their clients in and during depositions, but there are limits. Here, I want to review some of those limits, and some of the new areas to be watchful for given the current trend toward remote depositions.
We have covered what a deposition is in previous posts, but to review briefly: a deposition a part of the discovery process. In short, it is an under oath interview, where one of the attorneys for a party to a lawsuit asks questions of another party or a witness about matters related to the ongoing action. The witness is required to answer the questions truthfully. This means that the witness must give honest and complete answers. That's easy enough to understand.
The attorney can assist by preparing the client or witness. However, once the deposition is started, the attorney's ability to “help” is much more limited. The attorney cannot obstruct the process. With limited exception, the attorney cannot instruct a witness not to answer. The attorney cannot suggest to a witness how to answer, often referred to as “coaching” the witness. The attorney cannot answer the question for the witness.
Objections are rare, but when they do happen that is one of the most common ways an attorney can obstruct the process. Generally, an objection should only be to matters that are privileged, or to the form of a question. An attorney should protect matters that are privileged. However, an objection to the form of the question should not be an opportunity for an attorney to interfere inappropriately.
The correct way to preserve an objection is, “Object to form.” In some circumstances, a little extra clarification is warranted. But not much.
When an attorney starts to add a little extra commentary, this can cross the line into obstructive practices. Imagine a scenario when an attorney is asking the opposing party to estimate something that is harmful to the other side's case. The attorney for the opposing party might appropriately object to form if a question is argumentative, misleading, misstates evidence, etc. What that attorney cannot say, for example, is “Object to form. I don't think this witness knows the answer here. Go ahead and answer, if you think you even can.” This is coaching the witness.
As attorneys, we have to be careful to balance (1) our duty to our clients to be advocates and to protect them from inappropriate or abusive practices against (2) our duty to the court and opposing counsel to not be abusive of the discovery process ourselves. Although it's rare, attorneys can sometimes get into back-and-forth jousting affairs over these objections and commentary.
The better approach is for the witness to be prepared by the attorney to answer the questions. That's the attorney's responsibility to anticipate what types of questions might come up, get the witness or client thinking about how he or she should or would answer them, and work with the witness on techniques for the best way to convey their testimony in a persuasive, but above all truthful, way.
Remote depositions, over platforms such as Zoom, WebEx, or the like, are becoming increasingly common in the era after coronavirus. These platforms can sometimes allow for extracurricular communication from an attorney to witness. It's difficult to anticipate and safeguard against every potential way in which an attorney may or may not see to take advantage of the medium. Still, although we expect attorneys to abide by the ethical rules, as an advocate and fellow officer of the court we have occasion to indicate on the record and address an appropriate behavior.
As technology evolves, new potential for abuse is will always exist. Cell phones, chat features on apps, and outright obstructive practices are things to be watchful for. However, I strongly believe that most attorneys take our duty as officers of the court seriously. We like to uphold the law because it benefits us, our clients, and the justice system as a whole.