Issues around Depositions
Slightly off-topic from immigration matters, but there are some things that I found interesting in another area of law.
Often times in legal related TV shows, you may come across rather dramatic scenes of depositions where lawyers from both sides of the table show hostility to each other, as well as to the deponent. However in reality, there are strict guidelines on how depositions may take place to preserve a more civil environment. These “guidelines” have become a hot topic for corporate lawyers, with many precedents shaping the way it is today. Here are some facts surrounding the issue:
Depositions can get tricky when it comes to the question of whether a lawyer can or cannot confer with his or her own witness during a deposition.
The most notable precedent is the Hall v. Clifton Precision in 1993, with a rather extreme outcome of essentially “unless the assertion of privilege needs to be determined, the attorney may not confer with the deponent at any time”. However there has been various opposing views to this ruling, for example in Chesbrough v. Life Care Centers, Inc. in 2014, viewing Hall “as a remedy worse than the disease”.
The issue surrounding counsels conferring with the deponent during a deposition is that, it may lead to “coaching”, which would cause the deponent to alter his deposition testimony, and possibly bending the truth – ultimately creating a situation where the deposition becomes a deposition of the lawyer, through the deponent.
There have been numerous precedents following Hall, most of which deals with the interruptions by the deponent’s counsel during questioning for the sole purpose of conferring. There exists over a dozen precedents that created some detailed wiggle room to the rules set by Hall; most of which states that the counsel to consult with the deponent may be OK if there is no question pending, and a break is acceptable if counsel did not request it – all provided that there is no “coaching”.
In sum, there are a few “rules of thumb” when it comes to depositions:
- Do not confer with the deponent (except for privilege) while a question is pending.
- Do not take a break for the sole purpose of conferring with the deponent.
- Conferring during lunch or other breaks during the deposition is somewhat more acceptable. Better if the witness testifies that there was no coaching.
- If the deposition has overnight breaks, conferring becomes even more allowable.
- Once the depositions become multi-day tasks, conferences between counsel and the deponent is ok (except perhaps not in South Carolina and Delaware).
In conclusion, breaks during depositions for the purpose of conferring with the deponent obstructs the fair ground for the pursuit of truth to prevail. However, Hall has created a hostile environment to which the presence of the lawyer becomes essentially pointless during a deposition. The rules for depositions have since relaxed to more reasonable grounds thanks to the following precedents.