This Witness is Killing Me
Of all the things that will keep a litigator up at night, producing a witness for deposition should not be on the list. Unfortunately, we have all experienced the sinking feeling when a witness is spinning out of control. Some are brash and argumentative. Some have poor or selective memories. Some are too nervous. Some are overconfident. Some are Lil Wayne (just kidding Lil Wayne, we all enjoyed the clips from your video deposition).
When we’ve instructed the witness to tell the truth and to keep his answers short, how do you respond when all this sage advice is ignored? Too often, we try to stop that freight train of “bad” testimony by throwing on the brakes in the only way possible, by objecting. “Objection, Form!” Sure, it starts innocently, but pretty soon we add “Objection, improper hypothetical”, then go directly to “Objection, calls for speculation, this witness cannot possibly be expected to know about (fill in the blank).” The next thing you know the attorney is practically answering the questions. We know we shouldn’t do this, but everybody does it, right? And what’s the worst that can happen? Surely, the opposing counsel won’t go to the judge, because they have transcripts in which they’ve done the exact same thing. Probably in this very case. So, for better or worse, the files in litigation firms around the country are filled with copies of depositions that violate the letter and the spirit of the rules on depositions, with no consequences. And nothing is ever going to change. Until now.
Is this Litigation Heaven? (No, it’s Iowa)
Recently, one United States District Judge had seen enough and was in a position to do something about it. Judge Mark Bennett of the Northern District of Iowa unearthed a rather extreme example of deposition abuse following a trial of a case in his courtroom and was “shocked by what I read”. (*4). Judge Bennett, on his own and over the rather loud silence of the opposing counsel, ordered sanctions on counsel for Abbott Laboratories for what he described as an overuse of “form” objections, blatant “witness coaching” and “excessive interruptions” in depositions. The Security Nation Bank of Sioux city, Iowa v. Abbott Laboratories, No. C 11-4017-MWB (N.D. Iowa 2014). His ruling was based on what he described as an “astounding” number of improper objections, which when combined with blatant coaching, were seen as too egregious to ignore. The sanctions were levied after the case was tried, as the Judge was previously unaware of the problem.
Judge Bennett ordered counsel (or a partner at counsel’s firm) to put together an instructional video regarding his opinion. He ordered that the video contain specific guidelines and practice pointers to prepare attorneys for proper defense of a deposition. While recognizing the potential career-changing ramifications of his sanction, he clearly felt that this level of discovery abuse required sanctions and an example needed to be made. It was clear that Judge Bennett was taking a stand against obstructionism when he said “(u)nless judges impose serious adverse consequences, like court-imposed sanctions, litigators’ conditional reflexes will persist.” (*4)
The opinion details a variety of common tactics that violate the rules. Although he noted the apparent split among judges regarding the use of “form” objections, Judge Bennett focused on the use of objections to coach witness testimony as the most egregious conduct, stating “…(c)ounsel’s repeated interjections frequently prompted witnesses to give particular, desired answers to the examiner’s questions.” (*18). He even called out the commonly used phrase “if you know”, which was often interjected by counsel as improper, as “it not-so-subtly suggests that the witness may not know the answer, inviting the witness to dodge or qualify an otherwise clear question.” (*25). Finally, he sharply criticized repeated interruptions in depositions, pointing to one transcript which contained 381 interruptions, which ended up being almost 3 per page. He found that such behavior persisted in other depositions defended by the sanctioned attorney and found this to be “…an independent reason to impose sanctions.” (*30).
First, prepare your deponent for the pressure of the deposition. Most attorneys do a good job of familiarizing witnesses with deposition rules, the important themes of the case and documents that may be used as exhibits. What we often fail to do is address is the pressure of a deposition. We forget that while we do this all the time, our deponent is often a relative neophyte and is probably expecting a confrontation worthy of Tom Cruise and Gene Hackman in “A Few Good Men.” She’s probably rehearsing her “you can’t handle the truth!” moment more than she’s reviewing the documents. As such, use mock depositions, sample questioning and frank discussions to prepare the witness for what is going to be a stressful situation. Remember, the better the witness does at handling the process, the less pressure there is to insert improper objections. Prepare your witness and trust them to answer the question.
Second, if you must object, keep objections to a minimum. Avoid objecting just because you could conceivably object. It usually just adds time to the process. Now that there is more than one opinion regarding excessive objections, be cognizant of this in both defending and taking the deposition. If you sense your witness floundering, ask for a break when there is no question pending and remind them of their preparation. If you are faced with an obstructionist attorney, remind them that excessive objections and interruptions are improper. Although every judge handles discovery abuse differently, don’t be afraid to request assistance from the Court if the behavior persists or is impacting the testimony.
Third, avoid coaching the witness. We know it violates the rules, but there is some gray area when it comes to how far you can push a speaking objection. Be aware that there is yet another case that bemoans such behavior and signals a willingness on the part of the bench to sanction egregious conduct. Do your part by presenting a prepared witness and avoiding the verbal suggestions, even the innocent sounding “if you can” that some attorneys interject after every difficult question.
Finally, don’t be an obstructionist. The main underlying theme of the opinion was Judge Bennett’s frustration with “obstructionism”. In the introductory portion of the opinion, he bemoans the fact that discovery has gone from the intended “free flow of information” to a quagmire of discovery disputes, boilerplate objections and harassment. If you want to avoid the ire of a likeminded judge, refuse the mainstream practice of gamesmanship and follow the spirit of the rules. You may appear a little less intimidating, but your civility will put you in the upper echelon of attorneys who are unafraid to decide their cases on the merits as opposed to a war of attrition that mocks any pursuit of a proper result.