We Don’t Talk about “Speaker 2”: Following the Rules in Depositions

The following is the most frequently reported, and replayed, passage from the October 17, 2022, deposition of Donald J. Trump in the sexual assault and defamation lawsuit that E. Jean Carroll brought against Mr. Trump:

Lawyer (17:05):
So the answer to my question is yes, that after you made the statement, you became aware that there’s a photo of you with Ms. Carroll in a receiving line, correct?

Donald Trump (17:17):
At some point I saw there was a photo on a receiving line. Yes.

Lawyer (17:22):
Let’s mark the photo. What number are we at to? What? Here in front of you a black and white photograph that we’ve marked as DJT 23. And I’m going to ask you, is this the photo that you were just referring to?

Donald Trump (17:41):
I think so, yes.

Lawyer (17:42):
And do you recall when you first saw this photo?

Donald Trump (17:45):
At some point during the process I saw it. That’s, I guess, her husband, John Johnson, who was an anchor for ABC. Nice guy. I thought, I mean, I don’t know him, but I thought he was pretty good at what he did. I don’t even know who the woman, let’s see. I don’t know who. It’s Marla.

Lawyer (18:12):
You’re saying Marla’s in this photo?

Donald Trump (18:14):
That’s Marla. Yeah. That’s my wife.

Lawyer (18:17):
Which woman are you pointing to?

Donald Trump (18:19):
Here.

Speaker 2 (18:22):
That’s Carroll.

Lawyer (18:22):
The person you just pointed to is [inaudible 00:18:23] Carroll.

Donald Trump (18:23):
Who is that? Who is this?

Speaker 2 (18:24):
Which furthers the point anyway.

Lawyer (18:26):
And the woman on the right is your then wife Ivana?

Donald Trump (18:28):
I don’t know.

Speaker 2 (18:28):
Your Honor.

Donald Trump (18:29):
If this was the picture, I assume that’s John Johnson. Is that . . .

Speaker 2 (18:32):
That’s Carroll.

Donald Trump (18:33):
. . . Carroll? Because it’s very blurry.

If you followed the first trial between Carroll and Trump, you know that Trump’s mistaken identification of a photograph of Carroll as that of his ex-wife Marla Maples provided a rebuttal at trial to Trump’s claim that Carroll was “not his type.” This passage will most certainly be a part of any future trial(s) between these parties as well.

For those concerned with proper deposition practice, however, this passage raises a different question: Why is “Speaker 2” (Trump defense lawyer Alina Habba) answering the question for her client?

Depositions under the Federal Rules

Under the rules of civil procedure, most would agree that in the above example, Speaker 2 should not have been answering the question for her client; she probably should not have been speaking at all. Two provisions of the Federal Rules of Civil Procedure establish that Speaker 2’s remarks during the questioning of her client were improper.

Rule 30(c)(1) provides that “the examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.” It is safe to say that during a trial or hearing, under the rules, it would be improper for a lawyer to interject while the lawyer’s client was on the witness stand being examined by the opposing lawyer. Even in the absence of an objection by the examining lawyer, such an interjection would bring a swift rebuke from most judges and, if repeated after a warning or two, may be grounds for sanctions. The rules are clear: the role of counsel for a witness at a deposition or at trial is confined to stating objections that are authorized by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Nothing more.

Rule 30(c)(2) provides that objections at a deposition or trial “must be stated concisely in a nonargumentative and nonsuggestive manner.” Put another way, a lawyer cannot “coach” a witness by an artful objection that suggests the answer to a question. In the above example, no unanswered question was pending, and so the testimony by the witness afforded no legitimate basis for his lawyer to assert any objection or say anything at all. Moreover, even assuming that the situation justified an objection—however invalid—Speaker 2 did not make an objection. Nor did she camouflage her statement by using any of the techniques frequently used by lawyers who try to circumvent the rules, such as requesting that the question be rephrased, instructing the client not to answer, or asking for clarification of the location of the subject in the photo. Instead, Speaker 2 interjected her own testimony into the case when she told her client that his testimony was incorrect and provided him with the correct answer.

The Model Rules as Applied to Depositions

Under the rules that govern a lawyer’s conduct during depositions, lawyers accept that, with the exception of interposing nonsuggestive objections when appropriate, their role during the examination of their client is generally akin to that of a potted plant.

We know of no reprimand or sanction imposed upon Trump’s lawyer for her interjection as Speaker 2, but, often, lawyers who overstep their role in what they believe is the fulfillment of the duty of diligent representation under ABA Model Rule 1.3 face professional discipline under the ethics rules. The statement in Comment 1 to Rule 1.3 that “[a] lawyer must also act with . . . zeal in advocacy” is not intended to endorse or encourage conduct that is an actual rule violation of any kind. See Daniel Harrington & Stephanie K. Benecchi, Is It Time to Remove “Zeal” from the ABA Model Rules of Professional Conduct?, americanbar.org (May 26, 2021). ABA Model Rule 3.4(c) also prohibits “knowingly disobey[ing] an obligation under the rules of a tribunal.” and many courts have specific court or local rules about deposition conduct by lawyers

In addition, if speaking objections or other inappropriate interjections by a lawyer during the testimony of the lawyer’s witness become disruptive or obstructive, the lawyer may also violate ABA Model Rule 3.2’s mandate that lawyers “make reasonable efforts to expedite litigation consistent with the interests of the client.”

For an example of how one court creatively dealt with a lawyer’s improper conduct while defending a deposition, see Security National Bank of Sioux City, Iowa v. Abbott Laboratories. 299 F.R.D. 595 (N.D. Iowa 2014). While the sanctions order was reversed on appeal, the lawyer’s multiple transgressions during the depositions taken in the case, and the court’s detailed rebuke of those transgressions, provide an informative mini treatise on the limits that the Federal Rules impose upon lawyers during witness questioning. The court in Security National identified three basic categories of inappropriate conduct by the lawyer defending a series of depositions in that case: (1) repeated “form” objections (nearly half of the pages of the depositions contained a form objection by the defending lawyer); (2) witness coaching, described by the court as improper objections by which the defending lawyer acted as an intermediary to reframe or translate the question and thereby suggest a response and; (3) excessive interruptions, specifically, the improper use of comments and repeated objections, which the court noted had the effect of suggesting that the witness not answer the question but instead ask for clarification or for the questioner to rephrase the question.

Local Rules and Standards of Professionalism in Depositions

In addition to the procedure and ethics rules that may apply, it is important to know—and to obey—any local court rules that may govern conduct during witness testimony. Many courts have their own “professionalism guidelines” that each lawyer appearing before that court is required to follow. These guidelines usually require far more than the rules of procedure and can be quite detailed about interactions between lawyers, lawyers and parties, and lawyers and nonparties during depositions or hearings.

Conclusion

While it appears that no one is talking about the conduct of Speaker 2 in the excerpt at the beginning of this article, failing to follow all of the rules regarding conduct during depositions can have dire consequences for lawyers and their clients, and the wise lawyer will study—and follow—all of the rules that govern depositions in whatever jurisdiction they are in.