There are several deposition tactics employed by defense counsel that can be dealt with by knowledgeable plaintiff’s attorneys. The following are just a few abusive tactics that occur frequently in depositions.
1. “If you know.”
In some cases, the plaintiff’s attorney is deposing the defendant and every time he or she reaches an important question that goes to the heart of the matter, defense counsel will interject with the instruction to the defendant to answer “if you know” or “answer only if you understand the question or know the answer.” The defendant often takes the hint and replies that he does not know the answer or does not understand the question. If a plaintiff’s attorney encounters such a tactic, the following response is suggested:
Plaintiff’s attorney: Mr. Defense Attorney, during this deposition you have instructed your client several times to answer “if he knows.” You may be assured that all of my questions presume that the defendant will answer only if he knows. I believe I made that clear in my opening instructions. If you have an objection to the form of the question or some other objection, please object; but I request that you refrain from coaching your witness. If you continue to employ such a tactic, I will adjourn this deposition and move for a protective order as well as sanctions. Thank you for your anticipated cooperation.
Continued coaching from defense counsel may force the plaintiff’s attorney to apply to the court for sanctions under the Federal or State Rule 30(d) or Rule 37. Most defense lawyers know that the plaintiff’s attorney is unlikely to take this extreme approach, and in most cases, plaintiff’s attorney will not have to. Most attorneys will limit such abusive tactics if they recognize that opposing counsel may be serious in seeking sanctions.
2. Frequent objections.
It is difficult for an attorney to take a deposition if the opposing attorney continuously objects. It throws the deposition off course, interrupts the flow of testimony, distracts the witness, and in all respects is an impediment to productive discovery.
It is wise for defense counsel and plaintiff’s counsel to agree at the beginning of the deposition that all objections as to competency, relevancy, or materiality are not waived by the failure to make them before or during the deposition. This is consistent with Rule 31 of the Rules of Civil Procedure. Certain objections as to form or foundation should be made at the time of the deposition so opposing counsel can clear the error, if necessary, but other objections are usually not waived if not made at the time of the deposition. A polite, unobtrusive objection that is followed by the instruction “you may answer” is acceptable, but an experienced plaintiff’s lawyer will not allow defense counsel to object frequently.
If defense counsel objects frequently and it appears that such objections are used only for the purpose of abuse, the following response is recommended:
Plaintiff’s attorney: Mr. Defense Attorney, you have objected approximately ten times in the past five minutes. Let’s agree that you have a standing objection at trial, and I will not assert that you have waived such objection when this case reaches the court. Your objection is now being noted on the record, and I request that you stop interrupting my examination with frequent objections. As you know, objections as to competency, relevancy, or materiality are not waived by the failure to make them during this deposition. I believe my questions are proper in form and foundation, and you will have ample opportunity to object to them if I attempt to use this deposition at trial. I assure you that you will receive the same courtesy from me during your questioning.
3. Instructions not to answer.
Some attorneys will instruct their clients not to answer certain questions that are prejudicial to their case. Needless to say, the fact that an answer may prejudice the case is not grounds for an instruction not to answer. Also, relevancy, materiality, or competency are not grounds to allow a deponent not to answer a question. If the deposing attorney is getting into an area of privileged attorney work product or is harassing the witness, such an instruction may be proper. However, if a plaintiff’s attorney encounters frequent instructions not to answer for abusive purposes only, he or she should employ the following tactic:
Plaintiff’s attorney: Mr. Defense Attorney, I noticed this deposition for the purpose of obtaining information. I am not seeking privileged information; I am not harassing the witness; and I am not seeking attorney work product. If the information sought is irrelevant the court will disallow the testimony at the time of trial. I do not need a foundation for every single question and based upon my experience, I am certain that my questions are proper. They are standard questions that go to the heart of this matter. Please allow the witness to answer the question or I will be forced to get a Protective Order with a request for sanctions. You may be assured that you will receive the same courtesy when you depose my client.
4. Going off the record.
Some attorneys will request “to go off the record” while inappropriate comments or remarks are made during the course of the deposition. If this tactic is employed, plaintiff’s counsel should make the following comment:
Plaintiff’s attorney: Mr. Court Reporter, I hereby request that any request to go off the record not be complied with at this time. Counsel has made that request several times and has made remarks or comments that are inappropriate for a deposition. A request to remain on the record overrules a request to go off the record. Therefore, unless both of us agree to go off the record, please keep the record in progress.
5. Asking the Witness the Same Question Repeatedly.
If the plaintiff or a witness is being deposed, some defense attorneys often ask the same question several times in several different ways. The reason is simple—if a person is forced to answer the same question several times, the person is likely to be inconsistent in at least one of the responses. Also, the deponent is likely to provide unnecessary details or insert responses that are inaccurate. If the plaintiff or witness is being abused by repetitive questions, the plaintiff’s counsel should employ the following tactic:
Plaintiff’s attorney: Mr. Defense Counsel, you have asked my client that question several times in several different ways. It has been asked and answered in detail. It is my opinion that if you ask a witness the same question several times, he is likely to change the answer out of sheer frustration. For that reason, I am going to instruct the witness not to answer that question if it is asked again no matter how you try to rephrase it.