Dealing with Attorney Misconduct During Depositions

Depositions are a critical part of the discovery process, but when misconduct enters the equation, it can disrupt proceedings, waste time, and even jeopardize a case. Misconduct during depositions often stems from improper objections, coaching witnesses, or bad faith behavior from opposing counsel.

This guide explores the various forms of deposition misconduct, how to address them effectively, and strategies for maintaining professionalism during depositions. Whether you’re navigating objections or considering sanctions, this post is designed to empower attorneys with actionable insights.

Understanding Deposition Misconduct and Civil Procedure

What Is Deposition Misconduct?

Deposition misconduct encompasses behaviors that violate procedural rules, disrupt proceedings, or hinder the truth-seeking process. These can include:

• Speaking objections designed to coach witnesses.
• Excessive interruptions.
• Inappropriate instructions for a witness not to answer.

Federal Rules of Civil Procedure (FRCP) Guidelines

The Federal Rules of Civil Procedure, particularly Rule 30, govern deposition conduct:

• Objections: Must be concise, non-argumentative, and non-suggestive.
• Instructions Not to Answer: Permissible only to preserve privilege, enforce a limitation ordered by the court, or prevent harassment.
• Good Faith Conduct: Attorneys are expected to act in good faith to avoid unnecessary disruptions.

Local Court Rules

Many jurisdictions have specific rules supplementing the FRCP, such as Local Rule 30-6, which provides mechanisms like emergency conferences to resolve deposition disputes. Attorneys should familiarize themselves with these rules to ensure compliance and address misconduct effectively.

Identifying and Addressing Deposition Misconduct

Common Forms of Misconduct

• Improper Objections:
  • String objections, such as combining irrelevance, Evidence Code violations, and vague complaints into a single objection.
  • Objecting to entire lines of questioning before any specific question is asked.
• Witness Coaching:
  • Speaking objections that guide the witness’s response.
  • Whispering or engaging in side discussions with the witness during the deposition.

How to Address Misconduct

1. Document the Behavior:
   • Clearly state on the record what is occurring. Example: “Let the record reflect that opposing counsel is making suggestive speaking objections.”
2. Request Compliance:
   • Politely ask opposing counsel to adhere to procedural rules.
3. Suspend the Deposition if Necessary:
   • Under FRCP Rule 30(d)(3), suspend the deposition and file a motion if the misconduct amounts to bad faith or harassment.

Deposition Conduct and Opposing Counsel

Handling Improper Conduct from Opposing Counsel

When opposing counsel engages in misconduct, such as excessive objections or coaching witnesses:

• Avoid retaliating with similar behavior.
• Remain professional and focused on preserving the integrity of the deposition.
• Use tools like video recording to document inappropriate conduct.

Emergency Remedies

Many local jurisdictions offer immediate remedies:

• Emergency Hearings: Request a hearing to resolve the dispute quickly.
• Protective Orders: Seek an order to limit further misconduct and protect the deposition’s integrity.

Remedies for Deposition Misconduct

Courts have broad discretion to impose sanctions for deposition misconduct.

Common Remedies:

1. Monetary Sanctions:
   • Reimbursement of attorney’s fees incurred due to misconduct.
2. Continuing the Deposition:
   • Ordering the deposition to continue under stricter conditions, such as at the courthouse.
3. Severe Sanctions:
   • Dismissing a claim or imposing adverse inferences in extreme cases.

How to Seek Remedies:

• File a motion for sanctions detailing the misconduct.
• Provide evidence, such as deposition transcripts or video recordings, to support your claim.

Preventing Deposition Misconduct

Best Practices for Attorneys

• Video Record Depositions: This deters misconduct and provides clear evidence if disputes arise.
• Prepare Thoroughly: Review procedural rules and educate clients on proper behavior.
• Maintain Professionalism: Set the tone for respect and adherence to the rules, even in challenging situations.

Educating Clients and Witnesses

• Discuss deposition procedures with clients and witnesses in advance.
• Emphasize the importance of answering truthfully and refraining from side conversations or emotional reactions.

Effective Deposition Strategies

Key Strategies to Ensure a Smooth Deposition

1. Know the Rules:
   • Familiarize yourself with both federal and local deposition rules to address misconduct effectively.
2. Document Misconduct:
   • Keep detailed records of improper behavior to support any motions or complaints.
3. Use Technology:
   • Leverage video recordings to create a clear, objective record of the deposition.

Developing a Strong Approach

By staying prepared, professional, and proactive, attorneys can navigate even contentious depositions with confidence and control.

FAQ: Dealing with Attorney Misconduct During Depositions

1. What qualifies as deposition misconduct?
Misconduct includes behaviors like speaking objections, coaching witnesses, excessive interruptions, and improper instructions not to answer.

2. How should I handle improper objections during a deposition?
Address them on the record, request compliance, and, if necessary, suspend the deposition under FRCP Rule 30(d)(3).

3. What are speaking objections?
Speaking objections are improper statements by counsel that suggest how a witness should respond, effectively coaching the witness.

4. Can I suspend a deposition for misconduct?
Yes, if the misconduct is in bad faith or harassing, you can suspend the deposition and file a motion with the court.

5. What remedies are available for deposition misconduct?
Courts may impose sanctions, such as monetary penalties, requiring the deposition to continue under supervision, or even dismissing claims in extreme cases.

6. How can I prevent deposition misconduct?
Prepare thoroughly, video record the deposition, and educate clients and witnesses about proper behavior.

7. What should I do if opposing counsel refuses to follow the rules?
Document the behavior, request compliance, and consider seeking court intervention through emergency hearings or protective orders.

8. Are local court rules different from federal rules?
Yes, local rules often supplement federal rules with jurisdiction-specific requirements or procedures for depositions.

9. How can video recordings help during depositions?
Video recordings deter misconduct and provide clear evidence if disputes escalate to motions or hearings.

10. What role do sanctions play in addressing attorney misconduct?
Sanctions serve as a deterrent and a remedy for improper conduct, ranging from monetary penalties to dismissal of claims in severe cases.

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