As evidenced by some recent high-profile decisions, courts take these issues seriously. Further, the recent amendments to the Federal Rules of Civil Procedure focus on streamlining discovery to more efficiently use money and time, and they emphasize the need for cooperation among counsel.
Unfortunately, uncivil attorneys still may utilize deposition abuse to target opponents based on their perceived strength, their sex or gender, or the extent to which they appear to be intimidated or rattled. Although abused attorneys can seek sanctions or the court’s assistance, there are other simpler steps attorneys can take in the moment to maximize deposition success and to help manage unmanageable opposing counsel.
Defending a Deposition Against a Bullying Attorney
Attorneys defending a deposition against a bullying attorney face a unique set of challenges. There is a tension between standing up for a witness and ensuring that the defending attorney does not sink to the level of the overly aggressive opposing counsel.
To that end, attorneys should be mindful of establishing a clear record of the misconduct while avoiding speaking objections that might violate court rules and procedures. Indeed, an attorney who is frustrated by another’s unprofessional conduct does not have the benefit of a clean record if the defending attorney also becomes critical or unprofessional. This can be a real challenge in the face of abusive behavior, particularly when a defending attorney feels an impulse to stand up for the witness she is defending.
The defending attorney may make a comment on the record about the tone of the abusing attorney, such as: “You are taking an unprofessional tone,” “Please do not raise your voice to the witness,” or “Please do not interrupt me so I can state my objection for the record.” Such commentary, when used sparingly, can be quite effective. Continuous objections do not always read well on a cold record, particularly if defending counsel and opposing counsel are speaking over each other. In such a circumstance, it can be difficult to tell, based purely on the transcript, who the bully actually was.
It may be a grade school technique, but adopting a soothing and professional tone with someone who is acting abusively will cause him or her either to calm down (thus relieving the pressure on the witness) or to react (which will be documented on the record if needed later for motions practice). Attorneys also should consider whether calling the court is appropriate, which may be strongly recommended or even required by the local rules of the relevant jurisdiction. If opposing counsel’s behavior is particularly obnoxious, but the questions being asked are proper, then calling the court may be less fruitful until there is a full transcript in hand. On the other hand, if counsel is being abusive in exploring certain types of questions or subject matters, it may be appropriate or necessary to seek an immediate ruling from the court.
A recent high-profile case showed one court’s impatience with an attorney who attempted to use a deposition as a way to embarrass a witness and dig into that witness’s character without any basis. On November 25, 2015, the Supreme Court of Minnesota imposed a 60-day suspension from the practice of law and a two-year supervised probation on an attorney who, during a deposition of a court-appointed parenting consultant, asked that consultant about previous inappropriate sexual relationships with minors, even though the attorney lacked any good faith basis to make the accusation or believe it to be true. See In re Petition for Disciplinary Action Against Kurzman, No. A14-1416 (Minn. Nov. 25, 2015). Sample questions included: “When you were accused of inappropriate contact with some of your clients, boys, at that time did you undergo a polygraph examination?”
In combination with other misconduct by the attorney, including failing to provide records that had been ordered by the court, the court ordered sanctions. Notably, the sanctioned attorney testified during an evidentiary hearing on this issue that he had heard the witness had been accused of such inappropriate conduct with minors but did not have any evidence in support of that recollection. The court thus concluded that the questioning was not in good faith but instead served “to embarrass and humiliate” the witness. This violated the applicable rules of professional conduct that, in Minnesota, prohibit attorneys from acting solely to “embarrass” a third person and “engag[ing] in conduct that is prejudicial to the administration of justice.” Minn. R. Prof. Conduct 4.4(a), 8.4(d).
There is another important consideration for attorneys who are defending a difficult deposition: Ensure that the witness is sufficiently calm and protected. Examination under oath is a stressful situation even without unprofessional conduct by an examining attorney. Therefore, the defending attorney must remember, above all, her primary responsibility: to protect her witness. This can mean taking frequent breaks to allow the witness a breather, objecting to questions to show the witness that opposing counsel’s conduct is unacceptable, and, if the behavior is truly egregious, considering pulling the witness from the deposition.
Taking a Deposition in the Face of a Bullying Defending Attorney
In January 2016, a magistrate judge from the U.S. District Court in the Northern District of California sanctioned an attorney whose behavior was unethical and improper in defending a deposition. See Claypole v. Cnty. of Monterey, No. 14-cv-02730-BLF (N.D. Cal. Jan. 12, 2016). The court found that the defending attorney acted inappropriately through several depositions, making long speaking objections, coaching the witnesses (sometimes even answering for them), and otherwise interfering in the depositions. The court awarded the deposing attorney her attorney fees and costs for multiple depositions.
Separately, the court focused on specific comments issued by the defending attorney during the deposition. As recited by the court, the examining attorney asked the defending attorney not to interrupt her, at which point the defending attorney countered: “Don’t raise your voice at me. It’s not becoming of a woman.” The court took special issue with this sort of pejorative comment: “A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common. The bigger issue is that comments like [the defending attorney’s] reflect and reinforce the male-dominated attitude of our profession.”
The court awarded further sanctions, noting that while they might not fully compensate the deposing attorney for the insult suffered, such sanctions might deter such conduct in the future. The court ordered the defending attorney to make a donation to the Women Lawyers Association of Los Angeles Foundation.
Although this case is helpful and instructive for those attorneys who are stymied in their ability to take a deposition by an abusive counsel, it shows that unprofessional behavior can exist in an open and notorious way. For those attorneys who are trying to take a deposition against a defending counsel who interrupts questions or improperly instructs the witness, the above case highlights some steps that attorneys can take to preserve their record.
First and most importantly, an attorney who is prevented from asking her questions in the method she would like should create a record of opposing counsel’s conduct. Similar to the above, it is important not to make a messy record, either by sinking to opposing counsel’s level or by speaking over one another.
Attorneys also should be familiar with the court’s procedures for resolving in-deposition disputes, whether by calling the court or marking the transcript for motions practice. Judges and courts often issue standing orders on proper deposition conduct, which can provide some insight on what constitutes improper deposition conduct.
To that end, an attorney can create a strong record only when she knows precisely what constitutes improper conduct. For example, in most jurisdictions, deposition objections are strictly limited to those on the basis of form or privilege. An objection to “form” can cover a host of procedural sins. However, attorneys generally are not permitted to state objections in a manner that coaches the witness to provide specific testimony or provides insight to the witness on how the defending attorney would like the witness to answer. This is a common error by defending attorneys who seek to intimidate, bully, or disrupt the examining attorney.
Federal Rule of Civil Procedure 30(c)(2) provides some guidance: “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Thus, an objection that goes beyond that and is either argumentative or suggestive is improper. Knowing the precise bounds of what is proper is a powerful tool.
Another common abuse by attorneys who are trying to disrupt a deposition is an instruction not to answer. Instructions not to answer are intended to be sparingly made because depositions are generally permitted to be broad in scope. Federal Rule of Civil Procedure 30(c)(2) states that such an instruction may be given “only” to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to terminate or limit the deposition. Thus, instructions on any other basis—such as that a question has been asked and answered or that a question is “irrelevant”—generally are improper.
Even in situations when a privilege is claimed, the examining attorney typically is permitted to test the boundaries of that privilege, including by asking questions regarding the circumstances of the claim of privilege and whether that claim has been waived. A defending attorney may seek to close off a witness’s testimony in such a manner, but examining attorneys can try to define the privilege through some (limited) examination.
If, in spite of employing the tactics noted above, an attorney is on the receiving end of bullying conduct in a deposition, an attorney may consider seeking sanctions after the fact from the court for improper conduct. It is true that some sanctions may not truly make the abused attorney whole, but may serve to deter future abusive conduct or bring such conduct to the court’s attention for future reference.
Federal Rule of Civil Procedure 30(d)(2) permits sanctions—“including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.” The court also may order an additional day of deposition or forced waiver of certain claims or positions.
Bringing these issues to the court’s attention requires some degree of artfulness. Indeed, it can be difficult to present to a court the full extent of misconduct in sweeping, summary statements, even if those statements are accurate (e.g., “counsel’s conduct was unprofessional in making numerous unsupported objections”). Based on a review of court orders on this topic, it appears that courts are most persuaded by briefs that are analytical or academic in tone and cite extensively to the record, quoting counsel’s conduct from the transcript.
By following some of the above considerations, attorneys who find themselves on the receiving end of abusive behavior in depositions may be able to achieve the best result out of difficult circumstances and help increase the civility of the legal profession.
Keywords: litigation, woman advocate, Federal Rules amendments, deposition, civility