January 10, 2020 Feature

Misbehaving

Obstreperous behavior in depositions does not advance a client’s case and, more often than not, backfires.

Erik A. Christiansen

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Clients often find lawyers who match their own personalities. Nefarious clients hire obstreperous lawyers, and aggressive litigants seek out so-called “bulldog” counsel. Misbehaving clients find lawyers that let them take the low road, and courts, litigants, and opposing counsel pay the price for their bad-faith behavior. Such behavior often shows up in depositions where deponents and their counsel engage in abusive deposition tactics. Deponents engage in evasive or belligerent behavior, while their lawyers sit idly by and passively observe their clients make a mockery of the process. Lawyers use speaking objections to coach clients, and deponents treat the entire deposition process as a farce to be shirked and gamed. Perhaps we abide it because it’s more trouble than it’s worth to deal with, and most depositions are relegated to the dustbin of litigation anyway.

But lawyers, as officers of the court, have special duties to avoid conduct that undermines the integrity of the adjudicative process. While a lawyer has a duty to be a persuasive advocate, that duty is qualified by the lawyer’s duty of candor to the tribunal. The duty of candor requires that a lawyer not mislead a tribunal with false statements of law or fact, but it also applies when a lawyer is representing a client in an ancillary proceeding such as a deposition.

What should you do when a lawyer is not knowingly offering evidence or testimony that the lawyer believes to be false; instead the lawyer countenances a deponent frustrating the deposition process or perhaps, worse still, the lawyer herself is hindering the deposition?

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