Don’t Coach Witnesses During a Deposition

A-11-638513-C generated one of the most interesting hearing transcripts I may have read thus far. First, I assume you know that coaching a witness during a deposition is bad. However, you could make it worse by using a covert signal system to instruct your client how to answer during a deposition (and then the opposing counsel figures it out). This is precisely the allegation that arose concerning the plaintiff’s deposition in A-11-638513-C. That allegation generated a lot of briefing and 62 page hearing transcript, filed November 15, 2013 and available online for those with a subscription.

Sadly, the court was persuaded that something improper did occur during the deposition. It struck the deposition and provided a lot of expensive relief given the number of lawyers involved in the case. As usual, I hope to never read something like this about something I did.

55:1 However, the conduct at this deposition, I’m sorry,
2 [plaintiff’s counsel], your — your conduct in the deposition just was
3 improper all the way around, and they’re entitled to relief
4 from it.
5 This deposition will be stricken. There will be a
6 second deposition taken at the expense of the plaintiff’s
7 counsel to include expenses for all defense counsel for
8 travel, translator, lodging if necessary, and court reporter.
9 It should be scheduled at a time when Judge — sorry,
10 Commissioner Bulla is available to address any concerns you
11 had.
12 Additionally, [plaintiff’s counsel], you are cautioned. All of
13 your objections in the following categories will be preserved
14 for trial and will not be raised at the deposition. You will
15 not be able to argue that prior testimony is misstated. You
16 will have all of your objections as to hearsay preserved.
17 They will not be made on the record. You will not have the
18 right to make the objection calls for a narrative or
19 speculation, because that will be preserved for the record.
20 You will no longer have the right to object to relevance. It
21 will be preserved for the time of trial.
22 You will not be able to raise that your client is
23 being harassed. If you believe that’s occurring, vacate the
24 time for the deposition and get the discovery commissioner on
25 the phone. You will not be allowed to sit directly next to
56:1 your client at the deposition. There will be enough space
2 between you so that if, in fact, as all four defendants very
3 clearly claim there was coaching, and it sure looked to me
4 like they made a good case for it, so that will not occur.
5 Next, your — it’s your right to object for
6 mischaracterizes prior testimony will be preserved until the
7 time of trial so that you need not make that on the record
8 during the deposition. Likewise, you will lose the right to
9 object based upon vague and ambiguous as to the questions. If
10 the client doesn’t understand the question, he can say that.
11 And it will not — it will be his testimony and not yours.