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The Return of the Civilized Deposition?

Video being taken of man during deposition
By Joseph Fawbush, Esq. on October 17, 2019 10:06 AM

It is easy for lawyers to fall into the “win at all costs" approach to litigation, which you already know if you've ever been in litigation. Instances of lawyers behaving badly toward each other inside and outside the courtroom are routinely reported on. Delaying tactics in discovery are routine. Contemptuous emails pop up all too frequently. Perhaps nowhere is civility less recognized, however, than in depositions.

While “competitive obstructionism" in depositions has been around since the 80s and 90s, courts and bar associations have taken notice, and are more likely than ever to sanction and reduce attorney fees for violations of professional and ethical rules in depositions.

Is professionalism in depositions capable of returning? Or is a cooperative and professional bar – even in depositions - what California Appellate Justice William Bedsworth lamented as “the Marie Celeste . . . a ghost ship reported by a few hardy souls but doubted by most people familiar with the area in which it's been reported"?

Recognizing Incivility as a Problem

The federal rules of civil procedure were amended to attempt to prevent unprofessional and discourteous behavior in depositions. In California, new attorneys have been required to take an oath to behave with dignity and integrity since 2014. The actions taken by courts and bar associations across the country are too numerous to list.

Still, the problem persists. Perhaps because when one side in litigation considers itself to be effectively playing hardball by being obstructionist or bullying in depositions it can be easy to respond in kind.

What to Do in Response to Unprofessional Behavior at a Deposition

Since we are only accountable for our own behavior, here are a couple of tips on how to handle unprofessional behavior by opposing counsel at a deposition.

  • Resolve it off the record. Sometimes, it can be that simple. What is the other attorney trying to accomplish with their behavior?
  • Document, get out of the way, and watch. Judges don't like egregious misbehavior any more than you do, so if it's a pattern, watching and documenting can be all you need for opposing counsel to trip over their own incivility.
  • Reset as a video deposition. Incivility may end with a camera present. If not, at least you have evidence.
  • Don't rise to the bait. It may be personality, it may be a strategy. But whatever the cause, responding in kind won't end well. Bullies want you to fight or be cowed. Don't do either.
  • Talk to your clients. Particularly if you expect opposing counsel to try to intimidate them. Make sure they are prepared.
  • Report. While this is obviously a last resort, and judges don't typically want to become involved, it is certainly an appropriate - and more frequently used - remedy for truly out-of-line behavior.

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