Defending the client’s deposition

An attorney tasked with defending a client’s deposition is doing most of the work prior to the deposition. While I have a frequently asked question on how a deponent should act at his or her deposition, the basic gist is: understand the question before you answer it; don’t lie; answer the question asked (but don’t provide extra information that the question does not seek); and don’t guess (but do provide an answer that contains the knowledge you have on what the question asks). My deposition preparation reviews that advice while helping the client understand that it is normal that many answers in his or her deposition will not be helpful to the case and that this should not cause concern. I also review important documents with the client (especially the pleadings, the financial declarations, and the parties’ affidavits) to see if the client has questions or concerns about them. Finally, I ask the client to identify questions he or she is most worried about and practice developing answers that are truthful but minimize damage.

Once the client’s deposition begins, his or her attorney has a very limited role. As Rule 30(j), SCRCP notes:

(1) At the beginning of each deposition, deposing counsel shall instruct the witness to ask deposing counsel, rather than the 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 under Rule 32(d)(3), SCRCP, and those necessary to assert a privilege, to enforce a limitation on evidence directed by the Court, or to present a motion pursuant to Rule 30(d), SCRCP, shall be preserved.

(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 or unless that counsel intends to present a motion under Rule 30(d), SCRCP. In addition, counsel shall have an affirmative duty to inform a witness that, unless such an objection is made, the question must be answered. Counsel directing that a witness not answer a question on those grounds or allowing a witness to refuse to answer a question on those grounds shall move the court for a protective order under Rule 26(c), SCRCP, or 30(d), SCRCP, within five business days of the suspension or termination of the deposition. Failure to timely file such a motion will constitute waiver of the objection, and the deposition may be reconvened.

(4) Counsel shall not make objections or statements which might suggest an answer to a witness. Counsel’s objections shall be stated concisely and in a non-argumentative and non-suggestive manner, stating the basis of the objection and nothing more.

(5) Counsel and a witness shall not engage in private, off-the-record conferences during depositions or during breaks or recesses regarding the substance of the testimony at the deposition, except for the purpose of deciding whether to assert a privilege or to make an objection or to move for a protective order.

(6) Any conferences which occur pursuant to, or in violation of, section (5) of this rule are proper subjects for inquiry by deposing counsel to ascertain whether there has been any witness coaching and, if so, to what extent and nature.

(7) Any conferences which occur pursuant to, or in violation of, section (5) of this rule shall be noted on the record by the counsel who participated in the conference. The purpose and outcome of the conference shall be noted on the record.

(8) Deposing counsel shall provide to opposing counsel a copy of all documents shown to the witness during the deposition, either before the deposition begins or contemporaneously with the showing of each document to the witness. If the documents are provided (or otherwise identified) at least two business days before the deposition, then the witness and the witness’ counsel do not have the right to discuss the documents privately before the witness answers questions about them. If the documents have not been so provided or identified, then counsel and the witness may have a reasonable amount of time to privately discuss the documents before the witness answers questions concerning the document.

(9) Violation of this rule may subject the violator to sanctions under Rule 37, SCRCP.

This rule puts numerous limitations on the role of the defending attorney but provides limited rights to confer with the client once the deposition begins. The significant limitations (violations of which subject the attorney and witness to sanctions under Rule 37, SCRCP) are:

Subsection one makes it clear that the witness looks to the deposing counsel, and not the client’s attorney “for clarifications, definitions, or explanations of any words, questions or documents presented during the course of the deposition.”

Subsection four prohibits defending counsel from making “objections or statements which might suggest an answer to a witness. Counsel’s objections shall be stated concisely and in a non-argumentative and non-suggestive manner, stating the basis of the objection and nothing more.”

Subsection five prohibit, with exceptions noted within the subsection from engaging “in private, off-the-record conferences during depositions or during breaks or recesses regarding the substance of the testimony at the deposition…”

However this rule contains two provisions which allow the attorney and client to confer.

Subsection five authorizes off-the-record conferences “for the purpose of deciding whether to assert a privilege or to make an objection or to move for a protective order.”

Subsection eight authorizes the attorney and client to of “have a reasonable amount of time to privately discuss the documents [that have not been provided or identified two business days prior to the deposition] before the witness answers questions concerning the document.

Note that these mid-deposition conferences trigger the provisions of subsections six and seven. Deposing counsel is entitled to inquire what topics these conferences discussed to confirm that they did not entail discussions of prohibited matters.

I am surprised how often I am able to invoke the provision of subsection eight because deposing counsel failed to provide me and my client documents two days prior to the deposition. A standard part of any deposing attorney’s checklist should be to provide/identify the documents one intends to use at least two days prior to the deposition. While the off-the-record conferences to discuss newly produced documents are limited to discussion of those documents, the client’s ability to have a break from aggressive questioning, and to have a calm discussion with his or her own attorney, can help calm the client and make it less likely that the depositing attorney can rattle the client into damaging testimony.

In contrast, I’ve rarely had to invoke the protections of subsection five. Typically objections based on attorney-client privilege or similar privileges lead the questioning attorney to withdraw the question. Discussions whether to invoke the Fifth Amendment privilege against self-incrimination are more common. However the right of the family court to take adverse inferences from an invocation of this privilege (see Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct.App.1998)) mean that it is rarely invoked in family court depositions.

Twice–both times early in my career–I’ve had a privilege conference with my client because opposing counsel was so obnoxious in his questioning that I discussed terminating the deposition and seeking a protective order.  Given the civility oath and In re Golden, 329 S.C. 335, 496 S.E.2d 619 (1998), I’d be surprised if this happens again in my career.

If one counsels a client not to answer a question based upon a claim of privilege, one must file a motion for a protective order within five business days or the claim is waived and the client must answer the question. Rule 30(j)(3), SCRCP.

When the opposing counsel is finished questioning, one has the right to question one’s own client. Because I expect my client to testify at trial, I don’t use these depositions to develop trial testimony. Nor do I use them to refute points established by opposing that are harmful to my client’s case, as those points can be established at trial and opposing counsel will then have limited ability to develop evidence to counter that testimony. There is no need to question a client at his or her deposition to refute the other side’s case or give context to unhelpful answers. Save that testimony for trial.

The only good reason to question one’s client in his or her deposition is when the client gave inaccurate and unhelpful testimony that is more in the nature of misapprehension or misspeaking than outright deceit. The goal is to give the client a chance to correct his or her testimony in a timely manner so that the client is not first presenting this testimony at trial–where the other side will rightly argue that the failure to correct the prior testimony in a timely manner is evidence of deceit.

In the ideal defense of my client’s deposition, I don’t say a word.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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