Handling Deposition Objections

I recently resolved a case where defense counsel either had no idea how to make an objection during a depostion, learned how to make objections from an old crusty lawyer, or simply wanted to be difficult. It is now so bad here in metro Atlanta with certain firms that I actually carry with me a deposition caselaw binder.

Improper Speaking Objections.

There is trend of selective adherence to civil procedure rules. This selective adherence has led to overly aggressive lawyers making "speaking objections" which do not instruct the witness not to answer but suggest an answer to the witness.

I will cite state law, but also use the Federal Rules as another nail: Fed. R. Civ. P. 30(d)(1) states "Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner." I also have Phillips, Id.; Hall, Id.; Civatrese v. Gorney, 358 Mass. 652, 266 N.E. 2d 668 (Mass. 1971) in my quiver.

Laying the ground rules early: The difficult Firm or Attorney.

For the first time I have had to resort to writing to counsel beforehand in a case. My letter sets out what is listed below. I informed counsel that unless we reach agreement on these issues , I will ask for a Case Management Conference (with an Order) on these points. I also told them that I will attach excerpts from the last deposition with that Firm. Here is what I wrote:

1. At the beginning of the deposition, deposing counsel shall instruct the witness to ask deposing counsel, rather than witness' own counsel, for clarifications, definitions, or explanations of any words, questions, or documents presented during the course of the deposition. The witness shall abide by these instructions.

2. All objections, except those which would be waived if not made at the deposition, and those necessary to assert a privilege, to enforce a limitation on evidence directed by the court, or to present a motion pursuant to relevant law, shall be preserved. Therefore, those objections need not and shall not be made during the course of depositions.

3. Counsel shall not direct or request that a witness not answer a question, unless that counsel has objected to the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by the court. .

4. Counsel shall not make objections or statements which might suggest an answer to a witness. Counsel's statements when making objections shall be succinct and verbally economical, stating the basis for the objection and nothing more.

5. Counsel and their witness-clients shall not engage in private, off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege.

6. Any conferences which occurs pursuant to, or in violation of, guideline above are a proper subject for inquiry by deposing counsel to determine whether there has been any witness - coaching.

7.Deposing counsel shall provide to the witness' counsel a copy of all documents shown to the witness during the deposition. The copies shall be provided either before the deposition begins or contemporaneously with the showing of each document to the witness. The witness and the witness's counsel do not have the right to discuss documents privately before the witness answers questions about them.

If there is no agreement on all points, I simply go to the Judge .

Videotaping the first deposition.

I now almost always videotape a the first deposition that I take with opposing counsel that has a reputation of being difficult. I find that usually that will tamp down the manner in which counsel acts. But now always. One firm had a young lawyer literally jump out of his chair, on camera, when about 2 hours into a deposition he objected and shouted "asked and answered!"
How do you handle it?