Don't fall for deposition tricks.

How should you handle a rude and difficult opposing attorney during your deposition of a defense witness? Here are some tips:

The "off the record" trick. Opposing counsel may want to go "off the record," claiming that tie or she has to clarify or "interpret" a question, then suggesting an answer to the deponent. Insist that the court reporter record everything that takes place during the deposition. Nothing should be "off the record" unless all the attorneys agree. If there is an "off the record" conversation, make sure you place it on the record in the form of a summary or by asking the deponent what was said.

The "Can I talk to my client for a minute?" trick. A party to a lawsuit has a statutory right to a fair discovery process, including depositions. Hall v. Clifton Precision held that counsel cannot repeatedly interrupt appropriate questioning. (150 F.R.D. 525 (E.D. Pa. 1993).) Orner v. Mt. Sinai Hospital criticized defense counsel's disingenuous interruptions and repeated directions to a witness not to answer. (761 N.Y.S.2d 603 (App. Div. 2003).) The Hall court noted that under Federal Rule of Civil Procedure 30(c), which is similar to state rules, depositions are to be conducted under the same evidentiary and testimonial rules used at trial. Attorney-client discussions are not allowed while the witness is on the stand, and they should not be permitted at deposition.

The "I object!" trick. This is one of the worst forms of abuse. Many times the opposing lawyer will not only object, but also give a speech that serves to coach the witness. Do not permit your opponent to do this. Terminate the deposition and arrange a telephone conference with the court and parties on the record, if possible. The court is not likely to tolerate a lawyer who continually objects without reason.

William S. Friedlander

Ithaca, New York