Attorney Professionalism Forum-Deposition Protocols: A Matter of Opinion?
2.3.2022
To the Forum,
I am a junior associate and was tasked with defending a witness deposition on a typical personal injury case. Plaintiff’s counsel made good points and got some pretty damaging (depending on your perspective) testimony. The client’s general counsel was present and seemed a bit concerned and anxious. During a break, the GC and I counseled the witness on how to rehabilitate her testimony, giving her some points to make during the remainder of the deposition.
Once we went back on the record, opposing counsel questioned the witness on any communications she had with me and the GC during the break. I strenuously objected to any details about the conversation because it was clearly privileged. Opposing counsel disagreed and marked the transcript for a ruling and was visibly frustrated by what he said was a clear “breach of deposition protocol.”
I debriefed the deposition with my senior partner, who told me that I had nothing to worry about and I was right to counsel the witness on how to rehabilitate her testimony. According to the senior partner, I had done well and that is “the way it has always been done.”
I am now confused. The plaintiff’s attorney seemed so confident in his position, but the senior partner has been practicing for so long. Was I right, was I wrong?
Sincerely,
Waverly E. Squire
Dear Waverly,
It can be challenging for attorneys (even for senior counsel) to navigate the boundaries of discovery, ethics and professionalism rules and contemporaneously reconcile them with practical guidance. Attorneys face a more formidable challenge in time-sensitive or high pressure, on-the-record situations in a deposition, hearing or trial. Sure enough, these rules also vary from state to state and sometimes court to court (and do vary in New York’s federal courts).
These situations rarely offer attorneys an adequate opportunity to confer with colleagues and superiors or conduct legal research. Developing good judgment and relying on experience can be invaluable, though neither are substitutes for familiarity with the rules.[1] To be sure, no statute or rule imposes a categorical and self-executing bar on communications between party and counsel during a break in trial testimony.[2] It is the extent to which the deposing counsel can inquire about the contents of that conversation that are the focus here.
There certainly are instances when the attorney-client privilege is waived, and some federal courts in New York allow deposing attorneys to question the witness after the break “to ascertain whether there has been any witness-coaching and, if so, what.”[3] Yet others allow the deposing attorney to inquire about the general subject matter of the conversation, absent special circumstances.[4] Attorneys risk undermining the goal of defending the client by seeking, however justly, to rehabilitate testimony if by doing so they waive the privilege.[5]
There is a cost-benefit analysis to be made during that break. The impact a perceived change in testimony may have will be – when looking at the entire deposition record – a function of credibility and within the purview of the factfinder.[6] Talking with the witness about testimony will invite inquiry and could impact witness credibility. Counsel may yet have an opportunity to confront the witness with any conflicting testimony at trial, much as you would have an opportunity to rehabilitate problematic testimony, even in the deposition itself.[7]
As a practical matter, the scope of examining your own witness in a deposition will be limited to the scope of the direct examination, as it is not advisable to open new doors unless your witness is not expected to be available at the time of trial. In practice, the attorney taking the deposition can question your witness on a very wide range of subjects, as the questioning is legitimate if it is calculated to lead to discoverable information. Courts opining on motions concerning this testimony can and do exercise broad discretion to allow cross-examination testimony.[8] CPLR 3113 (c) provides that cross-examination need not be limited to the subject matter of the examination in chief.
Here, again, developing sound judgment is helpful insofar as the judge is generally not present to provide any judicial direction in a deposition. When rehabilitating your witness, you should be careful not to invite further cross-examination from your opposing counsel by opening new doors of inquiry, as your opposing counsel will have the right to more fully examine your witness on that topic. The extent and degree to which the door has been opened is approached on a case-by-case basis.[9]
That notwithstanding, consulting your senior partner was absolutely correct. It will not surprise the reader to know that attorneys regularly disagree on how to interpret rules and experience. The Rules of Professional Conduct (RPC) provide oversight mechanisms for subordinate attorneys.[10]
The deposing counsel would always have the burden of demonstrating that otherwise privileged communications between the client and attorney lose that status merely by virtue of being “impermissible” under the rules governing depositions.[11]
We must distinguish between successfully challenging your objection, instructing your witness not to answer a pending question, breaking during a pending question and seeking leave of the court to obtain testimony (or harder yet, sanctions) on conversations between counsel and client during a break.[12] Conferring with a deponent whilst a question is pending or taking a break during the pendency of that question to counsel a witness will likely invite the ire of the court, if not worse. In many jurisdictions, consultations, at naturally occurring breaks in the deposition, have been given more favorable treatment.[13] There is even greater leniency with overnight breaks and multi-day examinations or adjournments.
Nothing in your prompt suggests you encouraged dishonesty, advised the deponent not to answer truthfully or evade questions asked, but to seize opportunities to potentially highlight favorable facts. Experience suggests that carefully cross-examining a witness on the record (whether in the deposition or at trial) can also accomplish the same rehabilitative goal.
Sincerely,
The Forum by:
Jean-Claude Mazzola
Hanoch Sheps
QUESTION FOR THE NEXT FORUM
To the Forum:
I am a personal injury lawyer and have a small firm with a few partners. I represent a retiree who worked for 25 years at a plant making plastic products owned by “Endorphin, Inc.” After his retirement, my client developed a particular form of cancer, which he was certain related to his long-term exposure to harmful chemicals at the plant. After doing the necessary research, I sued Endorphin on my client’s behalf, under a one-third contingency arrangement.
In the course of discovery – all conducted under strict confidentiality orders – I saw Endorphin documents that I realized showed that company executives ignored warnings about the risks. The defendant is now offering a $20 million settlement, which my client is willing to accept. With some pride, I attribute the large amount to my own particular abilities and expertise, including my undergraduate training in chemistry, which enabled me to understand the technical documents and detect and understand the cleverly worded warnings.
I have separately been contacted by several other former Endorphin workers who want to sue Endorphin for their own medical injuries, but none of them has formally retained me – yet.
Defendant’s counsel has sent me a draft settlement agreement, which would require that my firm and I
- not represent anyone pursuing a similar claim against Endorphin or any other defendant;
- not assist in, or encourage, any suit against Endorphin or any other defendant for a similar claim; and
- keep confidential the existence and amount of the settlement and all information we learned in the course of this representation (absent judicial process compelling disclosure, in which case we must provide Endorphin with sufficient notice and opportunity to contest such process).
I want to settle my client’s case and get him the award to which he is entitled. But I also want to represent other clients against Endorphin, and these provisions would make that impossible. What should I do?
Sincerely,
Clara Contingency
[1] According to Uniform Rules for the Conduct of Depositions, “[a]n attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly.” N.Y. Comp. Codes R. & Regs. tit. 22, § 221.3.
[2] CPLR 3113 (c) states, “[e]xamination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court.” N.Y. CPLR 3113. Brightman v. Corizon, Inc., 72 Misc. 3d 1213(A) (Sup. Ct., N.Y. Co. 2021). The Federal Rules of Civil Procedure do not address this issue.
[3] Jones v. J.C. Penney’s Dept. Stores, Inc., 228 F.R.D. 190, 204 (W.D.N.Y. 2005);
[4] Gibbs v. City of N.Y., CV-06-5112 (ILG) (VVP), 2008 U.S. Dist. LEXIS 22588, *5-6 (E.D.N.Y. March 21, 2008).
[5] Gray v. Cleaning Sys. & Suppliers, 143 F.R.D. 48 (S.D.N.Y. 1992) (stating that the goal of discovery and trial is truth-finding). Attorneys would add insult to injury by allowing a court to conclude that justice is better served by revealing information discussed in break that would not have otherwise been disclosed.
[6] Competing evidence must be weighed and the credibility of the witnesses must be assessed by a factfinder, and is rarely, if ever, decided even on a motion for summary judgment. It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof). Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1044 (2016).
[7] We do not address here what to do if your witness gives an inaccurate answer at a deposition. Generally, there is more acceptance and tolerance of counseling a deponent during a break to correct clear misstatements of facts.
[8] People v. Bailey, 159 A.D.2d 862, 864 (3d Dep’t 1990) (holding that the extent of redirect examination is for the most part governed by the discretion of the trial court), citing People v. Melendez, 55 N.Y.2d 445, 451 (1982).
[9] People v. Bailey, 159 A.D.2d 864.
[10] RPC 5.1 requires a law firm to “make reasonable efforts to ensure that all lawyers in the firm conform to these Rules.” We caution that RPC 5.1, when read in conjunction with RPC 5.2 can bind a lawyer notwithstanding whether the lawyer acted at the direction of another, or ratify the others’ behavior.
[11] Brightman v. Corizon, Inc., 72 Misc. 3d 1213(A) (Sup. Ct., N.Y. Co. 2021).
[12] The Uniform Rules provide that even when a proper objection has been posed, the witness must still ordinarily answer the question—and that counsel may not direct the witness to refrain from answering. (See 22 N.Y.C.R.R. § 221.1 [a], 221.2.)
[13] Pennsylvania is an exception to this general trend, following a hardline standard against in-deposition consultations. See Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).
