Why do attorneys “act out” during the deposition of expert witnesses and coach “their expert?”
Because they can.
The kind of tactics lawyers are using at deposition include:
- Objective to almost all of the questions.
- Interrupting and asking counsel “to be more specific.”
- Coaching the expert and telling him to “answer if he knows,” etc.
Some courts have been moved to action. The US district court of Iowa, in the case of Security Nat. Bank of Sioux City, Iowa v. Abbott Laboratories, —F.Supp.2d—(2014) dealt with a products liability case for allegedly defective baby formula.
The court dealt with counsel’s obstructionist conduct at deposition.
The court stated:
While obstructionist tactics pervade all aspects of pretrial discovery, this case involves discovery abuse perpetrated during depositions. Earlier this year, in preparation for a hard-fought product liability jury trial, I was called upon by the parties to rule on numerous objections to deposition transcripts that the parties intended to use at trial. I noticed that the deposition transcripts were littered with what I perceived to be meritless objections made by one of the defendant’s lawyers, whom I refer to here as “Counsel.” I was shocked by what I read. Thus, for the reasons discussed below, I find that Counsel’s deposition conduct warrants sanctions.
The court held:
Attorney’s conduct violated procedural rule prohibiting witness coaching; attorney violated procedural rule that prohibited impeding, delaying, and frustrating examination of witnesses during depositions; and attorney’s conduct warranted sanction in which attorney was required to write and produce training video that addressed impropriety of his conduct.
Unless a question is truly so vague or ambiguous that the defending lawyer cannot possibly discern its subject matter, the defending lawyer may not suggest to the witness that the lawyer deems the question to be unclear; lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question. Fed.Rules Civ.Proc.Rule 30(c)(2), 28 U.S.C.A.
Instructions to a witness at a deposition that they may answer a question “if they know” or “if they understand the question” are raw, unmitigated coaching, and are never appropriate. Fed.Rules Civ.Proc.Rule 30(c)(2), 28 U.S.C.A.
Attorney’s conduct at depositions, i.e., making objections that prompted witnesses to request that examiner clarify otherwise cogent questions, concluding objections by telling witness to answer “if you know,” and rephrasing examiner’s questions, violated procedural rule prohibiting witness coaching. Fed.Rules Civ.Proc.Rule 30(c)(2), 28 U.S.C.A.
Attorney’s excessive interruptions and objections at depositions, such that attorney’s name appeared on average between one and three times per page of deposition transcript, violated procedural rule that prohibited impeding, delaying, and frustrating examination of witnesses during depositions. Fed.Rules Civ.Proc.Rule 30, 28 U.S.C.A.