Ethics Opinions Every South Carolina Attorney Should Know: Part II, Improper Deposition Defense Conduct

My first job out of law school was as the lone associate for a well-regarded personal injury attorney who was trying to establish his own practice.  The easy cases he worked on himself.  I assisted in cases with large damages, questionable liability and, often, significant legal, procedural or evidentiary hurdles to overcome.  It was like working for Don Quixote and I did not like being Sancho.

I got to take my first depositions because my boss, trying to outsmart a discovery deadline in a Federal case, noticed a weeks’ worth of simultaneous depositions in San Francisco and Washington D.C.  When opposing counsel refused to reschedule either set of depositions, I was sent to D.C. with instructions to do the best I could.

This was not ideal circumstances.  Not only had I never taken a deposition before, I had never seen a deposition taken before.  The depositions were being defended by an Arnold & Porter partner (a hugely political firm established by a former United States Supreme Court justice) and I was deposing high level employees of the American Red Cross, including its President and its Head of Epidemiology.

The whole experience was designed to be intimidating.  I arrive at the Arnold & Porter office and notice what looks like a Robert Rauschenberg-inspired wall-sized mural on the lobby wall. I comment to the receptionist that the mural looks like a Rauschenberg and am casually informed that it is an actual Rauschenberg–this firm has million dollar artwork in its reception area! The depositions hadn’t started and I was already feeling like a “pretend” attorney that these “real” attorneys recognized as an imposter.

It got worse.  For five days no matter what question I asked of a Red Cross witness, Arnold & Porter partner would raise an objection.  Often these objections would include long-winded explanations of what was wrong with my question with the objection conveying to the witness the problem that he (all these deponents were male) should have with my question.  The deponents, being highly intelligent and experienced professionals, would then use the attorney’s objection as a guide to providing evasive answers.  This would go on for hours and I had no idea how to get the attorney to stop making objections or get the witnesses to answer my questions.  I would end each day so utterly frustrated that it took all my limited emotional strength to not break down sobbing in the Arnold & Porter partner’s presence.

Eighteen years later I would know exactly how to handle this situation. In the Matter of Anonymous Member of the South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10 (2001), explains how defending counsel is to conduct him or herself during a deposition in accord with the requirements of Rule 30(j) of the South Carolina Rule of Civil Procedure (a rule derived from Judge Robert S. Gawthrop’s seminal opinion in Hall Clifton Precision, 150 F.R.D. 525 (E.D.Pa.1993), which, ironically, is from the same district court as the Red Cross case I was taking depositions in).

In Re Anonymous sets strict limits on off-the-record conferences between a deponent and the defending attorney:

[A] deposition’s beginning signals the end of a witness’s preparation. Once a deposition begins, an attorney and a client may have an off-the-record conference only when deciding whether to assert a privilege or to discuss a previously undisclosed document…

The opinion further highlights limits on suggestive objections and interjections:

In order to prevent witness coaching during depositions, the rule prohibits lengthy “speaking” objections and brief suggestive interjections. As noted by Judge Gawthrop in Hall, the rules of evidence “contain no provision allowing lawyers to interrupt the trial testimony of a witness to make a statement. Such behavior should likewise be prohibited at depositions, since it tends to obstruct the taking of the witness’s testimony.” …Therefore, interjections during a deposition by the witness’s attorney such as “if you remember” and “don’t speculate” are improper because they suggest to the witness how to answer the question…

The underlying purpose of a deposition is to find out what a witness saw, heard, or did—what the witness thinks. A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient record. It is the witness—not the lawyer—who is the witness.

Rule 30(j)(1), SCRCP also directs the deponent to look to the attorney asking the question, not the witness’s own counsel, for any clarifications or explanations. A witness’s attorney cannot object to a question just because the attorney does not understand the question.  Furthermore, it is improper for counsel to state for the record their interpretations of questions, since such interpretations are completely irrelevant and improperly suggestive to the deponent. A witness’s attorney must also refrain from rephrasing questions for the witness.

In Re Anonymous, 346 S.C. at 191-192 (citations omitted).  Finally, In Re Anonymous explains how and when it is proper to instruct a witness not to answer a question:

New Rule 30(j), SCRCP, also limits when an attorney may advise a witness not to answer a question during a deposition. The only circumstances under which an attorney may instruct the witness not to answer a question in a deposition are: (1) when counsel has objected to the question on the ground that the answer is protected by a privilege; (2) when the information sought is protected by a limitation on evidence directed by the court; and (3) when the witness’s counsel intends to present a motion under Rule 30(d), SCRCP (witness harassment). See Rule 30(j)(3), SCRCP. The rule even requires attorneys to affirmatively direct their witnesses to answer a question unless they make one of these objections.

In Re Anonymous explicitly states that failing to abide by these above limitations on defending counsel’s behavior is not “zealous advocacy” but is, instead, a violation of the Rules of Professional Conduct.  In the years shortly after this opinion’s release, I continued to see opposing attorneys make speaking or suggestive suggestions but this behavior is declining with time.  When such behavior occurs, I make a copy of In Re Anonymous an exhibit to my deposition and read to opposing counsel the provision of this opinion that I believe he or she is violating.  This almost always stops the offensive behavior.

I end this blog by noting that In Re Anonymous also contains excellent instructions on the respective duties of a supervising attorney and the attorneys they supervise in complying with the Rules of Professional Conduct. Since I have neither supervised another attorney nor been supervised by another attorney since In Re Anonymous’ release, I rarely refer to that portion of the opinion but it is an invaluable guide to attorneys in a supervisory relationship.

The lesson of In Re Anonymous: with limited and clearly-defined exceptions, the task of an attorney defending a deposition is to listen and be quiet.

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