Sept. 15, 2017
Depositions can quickly become confrontational. People often don’t perform well under pressure, and the atmosphere in the courtroom can make people tense, anxious and impatient. In a courtroom with this type of atmosphere, it is important for litigators to be patient with their opposing counsel. While the opposing counsel may be a very pleasant person, it is easy to lose your temper after spending all day with someone whose goal is to weaken your case.
According to D. Shane Read, author of the award-winning and best-selling textbook Winning at Deposition, you can overcome confrontations with obnoxious opposing counsel. Don’t let anger distract you from the task at hand. Follow these eight easy steps to resolve a conflict with your opposing counsel.
1. Ignore opposing counsel.
Although you should always be on your guard, it is best to assume the other attorney has good motives and simply ignore his bad deposition skills. What you see as coaching the witness may be a lawyer's sincere attempt to clarify your question so the witness can understand it. Likewise, if opposing counsel is taking the deposition, his repetitive questions may be symptoms of an unorganized deposition and not malicious intent on the lawyer's part. Having said that, once you determine the attorney is violating the Rules, still ignore his behavior unless it affects the substance of the deposition. Getting a court to rule in your favor when counsel behaves badly may take more time than it is worth. But, don't be afraid to go through steps two through eight if necessary.
2. Calmly build a record with several objections.
If opposing counsel continues to act inappropriately; calmly make your objections. Unless it is a critical moment in the deposition, you will have a much better chance to prevail on a dispute if the court has several examples of opposing counsel's inappropriate conduct.
3. Confer with opposing counsel off the record.
If the problem persists even after your objections, ask the court reporter to go off the record. The reason to do this is that opposing counsel is more likely to respond if you complain informally. Don't put opposing counsel on the defensive, but explain why you are objecting to his behavior and see if you both can reach an understanding about how to proceed. For example, you might need to explain that you think that the same question has been asked so many times that it has become harassing. Such an explanation given off the record is more likely to change opposing counsel's behavior than an on the record attack where you state, "counsel, objection for the third time, asked and answered. You are harassing this witness, and you need to move on." The problem with such an attack is that no one likes to be lectured by others, especially attorneys. Moreover, Rule 37(a)(5)(A)(i) requires you to try to resolve the dispute in good faith with opposing counsel in order to get costs awarded to you for opposing counsel's behavior.
4. Respectfully listen.
It is also important to listen to opposing counsel. Politely ask him why he is acting the way he is. Maybe there is a good explanation. Even if there is not, everyone likes to feel that he is being heard. Listening to his concerns will go a long way toward reaching a mutual understanding.
5. Use humor if possible.
If you can find a way to lighten the tense atmosphere, try it. Do not follow the advice of Successful First Depositions. In that book, the authors suggest you say to the intimidating attorney: "I see you have lost your composure. Let's resume the deposition in another 15 minutes, so you can take the time to regain control of yourself and proceed in a civil manner."* Such a condescending lecture fuels the flames of the fire.
6. Final warning on the record.
If the off the record discussion fails, you need to wait for the next opportunity to object. Make it clear on the record that if opposing counsel continues with his behavior, you will terminate the deposition until you can get relief from the court.
7. Seek court's help.
If this has been a difficult deposition to arrange and the issue is clear, consider calling the court's chambers to see if the judge or magistrate is available to resolve the dispute. However, counsel's behavior can usually only be revealed by examining the transcript after it has been prepared by the court reporter. But if the problem is clear, such as when a defending attorney instructs his witness not to answer without any basis for the objection, such a problem can easily be resolved by the court over the phone. If the problem is cumulative and more difficult to pinpoint, it would make sense to wait until the transcript has been prepared so that the court will have several examples to support a ruling in your favor. In addition, know whether or not your judge will handle disputes during a deposition by phone before you start the deposition. Also, have the phone number ready. Finding a judge's number by calling information or someone at your office can quickly add to your frustrations.
8. Video the deposition.
A video is the best way to show a judge the sanctionable conduct of opposing counsel. A bland transcript often does not do justice to opposing counsel's behavior. Seeing unprofessional conduct in living color will make it easy for a judge to rule in your favor. Second, it is a great preemptive strike that almost guarantees opposing counsel will behave professionally. Most attorneys will tone down their combativeness if they realize their actions are being recorded. Likewise, seasoned lawyers know that a deposition that is only being transcribed by a court reporter will not reveal an attorney who raises his voice or the length of time he confers with a client. Depending on the court reporter, the transcript may not even reflect that the attorney has conferred with the witness.
*Bradley Clary, Sharon Paulsen and Michael Vanselow, Successful First Depositions at 132 (West Group 2001).