Litigation

Depositions: How to Stop Coaching

By Evan Schaeffer

Though there are rules in most jurisdictions requiring objections to be concise, this doesn?t mean some lawyers won?t still try to make long-winded, rambling objections that suggest the answer to the deponent. How do you prevent opposing counsel from coaching witnesses with such ?speaking objections??

Examples of speaking objections are easy to come by. ?Objection, that question has been asked already, and the witness already said no. Asked and answered.? ?Objection, vague. I don?t understand that question. What do you mean by ?epidemiology?? Are you talking only about statistically significant finding? Or not??

Even the common practice of telling the deponent ?If you know? after you ask your question constitutes a speaking objection as far as I'm concerned.

To shut down speaking objections, you have to speak up -- loudly and with conviction -- the first time your opposing counsel tries to amplify on simple objections to form or foundation. Don?t be afraid to interrupt once the behavior starts. In fact, you should interrupt. By raising your voice and talking over opposing counsel, you?ll insure both that the reporter takes down what you say and that the witness hears you rather than the opposing counsel, who will most likely stop talking anyway.

Try something like this: ?Stop right there. You?ve made your objection. Anything else is a speaking objection, and there aren?t going to be any speaking objections today.?

In my experience, this is all it takes to shut down the speaking objections before they start. There are exceptions, of course--lawyers who will take your interruption as an opportunity for a chest-thumping retort. Don?t take the bait by getting drawn into an argument. Simple wait for the next speaking objection and, if it comes, tell the opposing lawyer that it?s now happened twice. If it happens again, you are going to end the deposition and seek a remedy with the court.

Your threat can?t be idle. As is good practice before any deposition begins, you should have already familiarized yourself with the rules applicable to the particular deposition for seeking court intervention. You probably won?t need to do this, but you?ll feel better knowing the circumstances under which speaking objections by your opposing counsel will give you an opportunity to seek the court?s help in shutting the practice down.

For many more deposition tips, see my book, "Deposition Checklists and Strategies" (James Publishing 2006).

Full post as published by The Illinois Trial Practice Blog on December 06, 2007 (boomark / email).