Most lawyers agree that defending depositions almost always involves questions posed to the client that you would prefer your client not to face. It is understandable that a defending attorney has the desire to shelter his or her client from uncomfortable or difficult questions. Perhaps the question posed attempts for your client to speculate as to an answer that strengthens the opposing side’s argument or is compounded and opens the door for a simple response to mean multiple unintended answers.
The practice of the law would be much easier if an attorney could pick and choose the questions which their client faces. However, the defending attorney has no such luxury. Rather, the defending attorney must allow their client to answer all questions posed (within the scope of the deposition), unless a privilege allows for an instruction not to answer. If an attorney has an objection (absent a privilege), Florida law states that he or she should simply interject “objection, form,” and then allow the client to answer the question. This preserves the issue for the parties to address at a later date, if necessary. Likewise, if the defending attorney feels that the questioning attorney asked inartful or inaccurate questions, cross-examination is the time to correct and address such issues.
The use of objections in a deposition should never be intended to purposely disrupt the deposition. Inappropriately and unnecessarily objecting or providing long speaking objections can functionally block an attorney from conducting their deposition, and effectively coach the witness or prevent them from answering questions at all. See Mason, Steven G., and Sheaffer, William J. Deposition Potpourri or Helpful Hints to Avoid Deposition Fatigue, The Florida Bar Journal, Vol LXXV, No. 6, June 2001. Such speaking objections are often used as an explicit tactic when an attorney is afraid that the witness will provide harmful testimony and decides to interject a lengthy ‘objection’ designed to instruct the witness on the ‘party line’ and remind the witness as to the testimony the objecting attorney desires. Lawyers are not permitted to engage in such conduct. It is rank coaching and forbidden by Florida law and the ethical requirements governing the conduct of attorneys in the State of Florida. Experienced practitioners will sometimes attempt to get away with behavior with newer attorneys and try to bully the newer attorney into thinking such objections are allowed. This can be an intimidating situation for a less experienced attorney, but the less experienced attorney should stand his or her ground in such a situation and utilize the tactics that I will describe below.
I recently attended a deposition where the Plaintiff’s attorney engaged in the worst sort of speaking objections and coaching. At this deposition, I kept my cool and utilized a recommendation that one of the senior partners at my firm advised me of early on in my career: the 3-strike rule. With this rule, you ask opposing counsel to limit his or her objection to form and advise counsel that you will suspend the deposition if the inappropriate behavior persists. If opposing counsel continues, you advise opposing counsel again that you will suspend the deposition. If they continue yet again a third time, you suspend the deposition – but, note on the record you reserve the right to continue questioning the witness upon Order from the Court.
More often than not, attorneys that engage in this abusive and harassing behavior at deposition receive little to no repercussion for same. However, I advise attorneys on the receiving end of these actions to remember that the Florida Bar has Guidelines for Professional Conduct and the Florida Handbook on Civil Discovery Practice. Both discuss that attorneys should not engage in any conduct at a deposition that would not be allowed in the presence of a judge. See Fla. Bar Guidelines for Prof. Conduct: F.10; see also Fla. Handbook on Civ. Discovery Practice, Ch. 5 at 75 (2019).
Due to the egregiousness of the situation encountered at my deposition and learning the same behavior was utilized in other occasions by the same counsel, I filed a Motion for Sanctions Concerning Deposition Misconduct by Plaintiff’s Counsel. This Motion memorialized what occurred at the various depositions and attached the relevant deposition transcripts. This is not the type of Motion that should be filed lightly, but is completely appropriate when circumstances dictate it. In my case, it worked. After years of litigating the same matter, opposing counsel reached out to resolve the case prior to the Motion being heard, and agreed to collect no attorneys’ fees for his work on the file.
When faced in a situation at deposition where you believe the 3-strike rule would be necessary, remember to keep calm and cool. Keep in mind that the transcript will be utilized in your Motion seeking court intervention. At the end of the day, attorney misconduct and abusive behavior should not occur, but if it does, allow it to leverage a positive result for your client through appropriate Motion practice.
Follow us on: