Must a Lawyer Control a Client During Deposition?

Presumably a lawyer knows how to act at a deposition.  But does the client?  What happens when the client behaves improperly?  Does a lawyer have an obligation to “control” an improperly behaving client?

Earlier this summer the Supreme Court of Delaware issued a decision about a dispute between members of a business entity.  After reaching its primary decision, the Court then drafted an addendum that addressed “the duty of counsel who is faced with a deponent’s inappropriate conduct at a deposition.”[1]  A deposition had been taken for which fees and costs had been awarded against the deponent.  That award was not appealed.  The Supreme Court decided to write about it anyway.

It cited entire sections of one deponent’s testimony.  I selected what I thought were some of the funnier ones below.

Q. That wasn’t my question. How many times did you meet with your counsel to prepare for the deposition?
A. I met with them — I’m not understanding the question.
Q. You told me you met with your counsel to prepare for the deposition.
A. Sure.
Q. How many times?
A. Well, see, I think of time as a continuum. So I think I met with them from the beginning to the end. And the beginning was the start, and then there was the rehearsal, and then there was the preview, and now it’s what I think of as the performance. So, in my mind, I’m answering what you’re asking. If you could be more specific. Do you want hours?
Q. Yes.
A. Oh, I don’t wear a watch. So I know the sun coming up in the morning and the moon coming up at night.

It kept going.

Q. I’m looking for your employment history. This isn’t a trick question. Are you able to give me your employment history?
A. I don’t know.
Q. Have you ever worked at SHN?
A. I have a deep association with it, yes.
Q. When you say “a deep association,” have you ever worked at SHN?
A. That’s my answer.
Q. Yes or no, have you worked at SHN? I don’t understand your answer.
A. I answered the question.
Q. I don’t understand your answer. Can you please answer it again?
A. I’m comfortable with my answer.
Q. Okay. So you’re unwilling to tell me whether you’ve ever worked at SHN?
A. My answer reflects the question posed to me
Q. I don’t even know what that means. My question is, have you ever worked at SHN, yes or no?
A. I find my answer to be most inclusive.
Q. I don’t understand what that —
A. And embracing.

This apparently went on throughout the deposition.  The Supreme Court stated these were “a representative but incomplete identification of Hays’s ridiculous and problematic responses to questions.”  The Court then called out Hay’s counsel by name, firm name, and noted the lawyer had been admitted pro hac for the case but “made no attempt to put an end to Hays’s flagrantly evasive, nonresponsive, and flippant answers.”  “The deposition appears to have been a colossal waste of time and resources due to her behavior, which made a mockery of the entire deposition proceeding.”  “An attorney representing a client who engages in such behavior during the course of a deposition cannot simply be a spectator and do nothing. Here,Hays’s counsel made no apparent effort to curb her misconduct.”

Perhaps this episode can be used positively as a lesson to those training new lawyers on deposition skills. Lawyers have an obligation to ensure that their clients do not undermine the integrity of the deposition proceedings by engaging in bad faith litigation tactics; they cannot simply sit and passively observe as their client persists in such conduct. Given the restrictions on conferring with a client during deposition proceedings, these points obviously should be addressed beforehand in the deposition preparation.

Hays’s appellate lawyers didn’t exactly solve the problem.

Hays’s appellate counsel did not help matters during oral argument before this Court when he was questioned about his client’s deposition behavior. Aside from repeatedly interrupting the Court and talking over the Court when the Court was raising the matter near the end of counsel’s allotted time for oral argument, counsel for Hays failed to acknowledge the inappropriateness of Hays’s conduct and then even tried to make an excuse for her by simply— and incorrectly—telling the Court that this was Hays’s first deposition.

Clients are going to do illogical things sometimes.  For the most part, I can’t control the client/deponent anymore than I can control the weather.  However, I can protect myself.  If the client/deponent is going off the rails (sometimes a subjective call itself) and isn’t taking the hint to get back on them, then start making a record to protect yourself.  Put the hints on the record, something, anything, so the court can see you’re at least involved.  This then might keep your name off the fees and costs order and out of the appellate decision.

[1] In re Shorenstein Hays-Nederlander Theatres LLC Appeals, 2019 Del. LEXIS 319, 2019 WL 2531162 (June 20, 2019). ParagraphStart with the building block of all narrative.Font SizeDrop Cap