Editor’s Note: Recently, Ellen Hobbs Hirshman [EHH] hosted a “roundtable” conference call with three plaintiffs’ lawyers, one defense lawyer, and a judge, to discuss obstructionist tactics during depositions, and how to handle them. The plaintiffs’ attorneys were Gerry Leeseberg [GL] of Leeseberg Tuttle in Columbus, Ohio; Steve Collier [SC] of Connelly, Jackson & Collier, in Toledo, Ohio; and Toby Hirshman [TH] of Linton & Hirshman in Cleveland, Ohio. The defense attorney was Bill Bonezzi [BB]of Bonezzi, Switzer, Murphy, Polito & Hupp in Cleveland, Ohio. The judge was Richard McMonagle [JRM]of the Cuyahoga County Court of Common Pleas. Here are some of their insights. Special thanks go to Laura Ware, who acted as Court Reporter for this conference call..
EHH: We’re discussing how to deal with speaking objections and inappropriate conduct in depositions. Let’s start by talking about the type of conduct we encounter in our day-to-day practices. Gerry, why don’t we start with you.
GL: Oh, boy. You know, I think I’ve matured, and most of the attorneys I’ve practiced with and against have matured, to the point where speaking objections are not as big a problem as they used to be.
I find myself being guilty of speaking objections when I encounter defense counsel who I believe is intentionally attempting to distort the record. It often occurs with my clients who are unsophisticated. I find myself having to jump in to stop what I consider to be a distortion of my client’s testimony.
The concern is that it’s difficult after a deposition has been completed to supplement a client’s testimony with an affidavit clarifying what they’ve said. Especially in federal court, not so much in state court, that is really frowned upon. And unless you’ve got a clean and accurate record, that deposition is often used against us in motions for summary judgment, motions in limine, and things of that nature.
So I do find myself, on occasion, being almost forced to engage in speaking objections, to clarify the record, where defense counsel is supposedly reiterating what my client or my expert testified to, and mischaracterizes it as a predicate to the next question. And by doing so, confuses the issue and confuses what the next answer to the question will be.
And I guess I’m not that concerned about being dragged in front of the court on these occasions because I’ll be able to defend my conduct in light of what defense counsel is doing.
TH: Perhaps I’m not as mature as Gerry, because I seem to run into speaking objections from defense counsel fairly frequently. There are certain lawyers who are repeatedly guilty of it. It’s usually a situation where they decide that the facts aren’t beneficial to them so they attempt to steer testimony in one direction or another by making objections that are calculated to suggest an answer. You can make your objections to their objections. Sometimes that’s effective in putting them in line, sometimes it’s not.
So I see it as an occasional problem, but when it’s a problem it can be a significant one. And if you don’t grab it by the horns, it can change the complexion of the case in a significant way. The question is how do you deal with that.
EHH: Now, Gerry suggested he doesn’t confront speaking objections as much, while Toby and I encounter them quite frequently. As Toby suggested, when we do confront them, they have distorted and sometimes ruined what could have been a very productive deposition.
So I’m wondering if anybody else encounters these types of talking objections which suggest an answer, and are clearly inappropriate.
GL: Ellen, I didn’t mean to suggest I don’t run into the problem. I do. It’s exactly on the occasions Toby was talking about. It seems like the better the deposition is going, the more you run into the problem from defense counsel.
And they do it for exactly the reasons Toby pointed out. When they make an objection, it’s almost like a red flag they pick up and wave in front of their witness, saying, “Okay, understand that I’ve got a problem with this question so I want you to think about it.” And if that’s not sufficient, they even add an explanation to their objection to help the witness understand exactly what their concern is about the question.
SC: I think sometimes depositions can bring out the worst in an attorney. When you see your case going down the drain, whether you’re plaintiff or defense, you have this desire to prevent that from happening. Unfortunately, it results in some of the conduct that was just discussed.
I think it can range from the very simple “If you know” instruction – to which the witness usually responds, “Oh, I don’t know” –
GL: What a coincidence.
SC: – to the long speaking objection Gerry spoke of, which I think is more problematic when it’s a predicate to a question and is not factually correct. But both these kinds of objections are problematic. If a witness, such as a doctor, is ready to give you an answer that is very helpful, and he is instructed, “Doctor, only answer if you know,” all of a sudden he may not know.
One way I try to confront this – particularly if I know the attorney and know that this might be a problem – is by telling the expert witness at the beginning of the deposition, “Look, I don’t want you to answer any question you don’t know, and if you don’t know the answer to a question, you can say that and this will prevent your lawyer from having to remind you of that during the deposition.” It’s not foolproof, but at least it’s something to help out, particularly if you’re making a record for the Court at a later time.
BB: I have noticed that the older or more experienced the defense counsel is, the less likely they are to object. Maybe it’s because younger or less experienced individuals feel they have to try to control the deposition, or that they have to show their physician or their client that they’re in charge.
However, as a defense attorney, I have also noticed that there are certain defense lawyers from certain law firms who constantly interrupt, interrupting the flow and the thought process of the individual. It’s done for a couple of reasons. One of them, which I find wrong, is that they don’t prep their witness well enough beforehand, so they interrupt and try to stop the flow of good questioning to make up for their lack of preparation.
The important thing is how you get around it. I don’t spend a great deal of time arguing with people in depositions anymore. I just don’t think it’s worth it. There are times you would like to jump right in and say something to disrupt the flow because you know you’re getting pounded. But, at the same time, those are the facts of the case. You have to deal with them and see how your witness is going to operate under pressure anyway.
But the fact of the matter is, we’re all going to continue to encounter speaking objections with certain attorneys, and I’m not sure how to stop it.
EHH: Steve has suggested one way to deal with these kinds of objections is to make a comment at the beginning of the deposition that, “I only want you to answer questions you know the answers to.” Another thing you can do, that I’ve done in some cases, is to explain at the outset, “Your counsel may object from time to time, and your counsel knows that it’s inappropriate to make talking objections, or to suggest an answer in his objections. So if he objects, he’ll probably just be saying the word ‘objection.’ And unless he or she instructs you not to answer, you go ahead and answer the question.”
It doesn’t always work, but it’s one thing I’ve tried.
SC: If there are a lot of interruptions, I usually remain calm and at the end just say, “Have you said everything you want to say now? Because I’m going to start speaking, and when you were speaking I did not interrupt, and I would appreciate the same courtesy from you.”
What I’m trying to do at that point is create a record. I’m not going to go to the Court very often, but when I do I’d like to have the record reflect very specific conduct where I’m remaining calm, doing what you’re supposed to do, and the other side is constantly interrupting or leading.
Because if you’re going to go to the Court, you don’t want to go crying wolf. You want to go there only when you have a very good record.
JRM: This is interesting because it sounds like an echo that I’ve been hearing for 30 years. We’ve had untold amounts of alleging unprofessionalism, codes of conduct, and everything, and it still seems to be the same dilemma. I appreciate what Mr. Bonezzi said about how the lawyer can lessen the impact of these kinds of objections or the number of times they occur. But I believe that occasionally the Judge would be interested in hearing about this misconduct – particularly if it is extreme.
The question is, how do you get to the judge? Most judges I’m familiar with insulate themselves from deposition disputes because they have their staff attorneys. So to get this misconduct before the judge, you have to pass through the filter of the staff attorney, which isn’t easy.
I think one thing that can be done is to have a video taken of the deposition. I’m not sure whether you do this routinely, or whether it’s feasible to do in all cases.
TH: I’ve often thought that with certain attorneys it might be necessary to at least have a tape recorder available, even if you don’t intend to videotape the deposition. This would be useful not only for speaking objections, but in those rare instances when an attorney becomes abusive. If you have a tape recorder there, at least you can put it on the table and say, “Listen, from now on I’m tape recording this, and you can continue in your present behavior or you can stop.”
JRM: When the record is so sterile, they can make a comment that, when you read it, does not seem all that serious. You’re right, Toby, when you get a video of it, or if it’s recorded, that can make a difference.
BB: I think it does. I think that often when it’s not on video there are shenanigans that take place, but once there’s a video that’s providing the information for all to see, it just doesn’t take place any longer.
GL: The problem is each deposition is expensive, and we’re not even sure when the problem is going to arise. To incur the expense of video-taping every deposition across the board on an annual basis is like trying to kill an ant with a sledgehammer.
One of the problems that we have is once the speaking objections have taken place the damage is done and the witness’s response has been shaped accordingly. The question then arises, what relief, what sanctions, am I entitled to from the Court?
And I would like to hear what the Judge has to say, but I personally have never filed a motion for sanctions against an attorney for engaging in that conduct. I’ve just tried to stop it through the different means already mentioned – with varying degrees of success. But I’ve never filed a motion for sanctions, and I’m not sure if one would be granted, or, if granted, what the sanctions would consist of.
JRM: I’ve never seen one, and I imagine that normally most of these problems are settled and long gone and forgotten. In most instances, we wouldn’t want to be bothered with something like that, which is being critical of the parties. We just want to see who’s ready to go to trial.
EHH: Gerry just brought up a good point. In Cuyahoga County we have local rules that give us some recourse by specifically prohibiting speaking objections. I know Lake and Summit counties have similar local rules, and the Federal Rules also deal with this problem.1 And some judges have some very specific rules about appropriate conduct in depositions, and about not making talking objections in the presence of the deponent.
Which leads to the question Gerry raised. How many of us ever bother to move the Court to get involved? As Gerry says, usually the cat’s out of the bag and they’ve already destroyed what would have been a brilliant deposition by plaintiff’s counsel. Right?
TH: The other side of the coin is the comment Gerry made when he started – that sometimes the talking objection is absolutely essential to prevent abusive questioning. So when a judge is confronted with this question, it’s not a one-sided question. He has to get to the heart of the matter, as to what the interactions were and what the real situation was in the deposition.
And my guess is, Judge, that’s not always an easy matter to ferret out.
JRM: No. You can’t. That’s why I like the video idea. You know, there’s a little sign on my desk that says, “There’s three sides to every story: yours, mine, and the facts.” And everybody is going to have their version of what really went on and their description of the other party, which can’t be fully understood from the written record.
And actually, I’m trying to look up our local rule here as we’re speaking.
EHH: Local Rule 13, right?
JRM: Is it 13? Yeah. “Decorum. Opposing counsel and the deponent shall be treated with civility and respect, and the questioner shall not engage in repetitive, harassing or badgering questioning. Ordinarily, the deponent shall be permitted to complete an answer without interruption by counsel.”
“Speaking objections which refer to the facts of the case or suggest an answer to the deponent are improper and shall not be made in the presence of the deponent.” counsel violates any of these rules at a deposition, the Court may order sanctions or other remedies, including those sanctions available under Ohio Rule of Civil Procedure 37.”
So, you know, if you bring them to us, we’re supposed to follow these rules. I just haven’t seen this.
BB: But, Judge, what is the sanction? Putting aside what the rules may call for, what is the pragmatic sanction for something like this? Everything is already done, everything is on the record, the testimony is in. What exactly is going to be done, ultimately? Because you certainly aren’t going to be able to strike the questions or the answers.
JRM: Well, I think you could. I think you could say, “Look, this is improper. This is not the way it’s done. Do it over.”
SC: I guess my other suggestion would be that you may not be able to undo what’s already happened, but if the Judge says, “If I find that conduct in the future, you are going to be removed as counsel, you are going to be limited in some way,” that is the type of thing that would be a cure – if anything would.
JRM: Of course, money always slows people down, if you want to penalize somebody with a sanction. But, to be honest with you, I’ve never seen this happen. I’ve been here for 33 years, and we just figured the attorneys settle these problems themselves.
SC: In my experience, we’ve been taught that judges don’t want to be bothered with these, and that’s the main reason they don’t come to the courts’ attention. I’ve only made a motion once, and on that occasion I created a very detailed record. I’d anticipated I might be making a motion, so all of my conduct during the deposition was letter perfect. I did not interrupt anybody, and I had this long record that – even without a video – you look at it and say, “Boy, that doesn’t look very good.”
GL: Steve, you’re a consummate gentleman and professional. I’d like to know how you respond to abusive tactics by a defense attorney who makes statements about a question, or the predicate to a question, distorts or mischaracterizes your expert’s or your client’s testimony, or uses compound questions where the answer is going to be damning simply because of how the question is phrased.
SC: The rules do allow you to stop the deposition. If opposing counsel is being abusive, or harassing, or whatever, I have at least threatened to stop the deposition before. Once, when a doctor was being deposed, I started to pack up to leave, and the doctor told his attorney, “Wait a second. I don’t want to have to come back here for another deposition. Can’t we work this out?” So we took a break, and it didn’t happen against the rest of the deposition.
I don’t do that all the time. That’s a rare circumstance. But I think if it gets to that point – particularly if you’re taking the deposition of the defendant or the defendant’s expert – it’s a useful tactic.
GL: I’m talking about when you’re defending a deposition, Steve. Opposing counsel is engaging in abusive tactics, and distorting the record in questioning your client, and your client is unsophisticated, and no matter how much preparation is easily misled.
SC: I would say one of the two things that you suggested. I don’t think you’re guilty of a speaking objection then because, as I read the rules, you’re allowed to prevent harassment from taking place. So your options are either to do that and clarify what you’re doing on the record, or to stop the deposition and try to get the Court involved at that time, if possible.
And sometimes the mere threat cures the situation. But I’m not suggesting that it works all the time.
TH: I think sometimes in that situation the speaking objection is essential. If you are truly dealing with dishonesty on the other side, in terms of rephrasing the facts as previously stated by the witness, sometimes you can shame people into changing the way they construct the question.
Sometimes that’s pretty effective, and I think you have to do it under those circumstances.
SC: One of the other things we have to deal with are the constant objections from the other side. We know
they’re not required. Rule 32(d)(3) sets forth the ones that are required or would otherwise be waived.
I think the constant objections are usually a sign of the objecting attorney’s insecurity. As we age, or evolve, or whatever you want to call it, you realize that all those objections may not be necessary and you get the confidence not to do it as much.
TH: Yeah, but in the situation Gerry is describing what you’re really objecting to is the form of the question, isn’t it? It’s an inappropriate question; you’re inserting facts that shouldn’t be there. And I think that objecting to these kinds of questions is allowable under any of these rules.
BB: Let me ask a question. How often do you really encounter this type of problem? I guess I’m looking at it from my point of view, because I do nothing but medical malpractice. And, I really don’t see these kinds of problems much, other than the occasional situation. Most of the time the attorneys opposite me are folks like you, Toby, or Steve, or Gerry, or Ellen, who are strong enough within your own personalities to control the situation in a way that is acceptable to everyone in the room, including the witnesses.
All you have to do is speak to the individual who is doing whatever it is that is causing the problem, and most of the time the problem will be corrected. Am I right or wrong in that?
GL: I think you’re absolutely right, Bill. I’ve seen young lawyers complain about a defense lawyer doing
something, and I say, “Well, what did you do about it? And if you didn’t do anything about it, as long as you let them do it, they’re going to continue to do it.”
This is the converse of what Steve was saying. It’s a manifestation of their insecurity; they’re not confident in the correctness of their position, so they don’t do anything to intercede. I think it’s absolutely imperative that you know the rules inside and out so that you have them as your weapon and as your moral high ground.
But invariably, when you get to the pressure points in an important deposition of a defendant or a defense witness, even counsel with whom you’ve got a lot of experience who are, themselves, experienced and sophisticated, will start to fidget and will try this tactic.
But, I think you’re exactly right, Bill. It’s really a question of how do we respond to try to bring it under control and make sure it doesn’t continue. Or, if it’s going to continue, to make a clear and proper record so that at least the threat of obtaining a sanction is there.
SC: Along those same lines, I remember one of my first videotaped depositions for trial. I was nervous and the attorney on the other side objected to every opinion question. And I’m thinking, well, I even had this written out and I know this is right, but I’m still wondering, did I do this right or is this whole thing blown?
That doesn’t happen to me anymore. They object to opinion questions, I go right on. But in the earlier days that can really be problematic for a young lawyer, and I think that’s probably why it’s done sometimes.
BB: I think you’re right.
EHH: And I think the true sign of professionalism is to be able to sit there and keep your mouth shut when things aren’t going well.
SC: That’s hard to do. I mean, it’s hard for me to do, too. You almost wish the witness could hear your thoughts, “Can’t you see that I am dying inside because of the way you’re answering the question?”
BB: We’ve all been there.
SC: But Bill is right, at some point in time the facts are the facts. And I think we’ve been through it enough that you say, “You know what, my livelihood, the essence of me, isn’t going to live or die in this deposition.”
BB: I’ve also found when I go back into something and I see that somebody is objecting strenuously, I literally will mark that area for trial purposes because I know somehow I’ve just hit on something. I may not recognize it at that moment, but hopefully by the time of trial I will, because that’s when you object. When there’s something really important. And if it’s not important, you’re not going to object.
EHH: I think we’re at the point where we’re going to have to wrap this up. But I would be curious to know if any other judge has ever confronted these issues, and, if not, are they open to dealing with them? And if they are willing to deal with them, how do we get them past the staff attorney?
SC: Judge, what about the idea of having one judge appointed in each jurisdiction to handle discovery disputes, instead of the judge handling the case?
JRM: That probably is not a bad idea because it gets the judge assigned to the case out of the mix and it becomes a more independent ruling. The parties can’t feel, “Gee, this judge is going to hate me through the rest of the trial because look what I pulled.”
SC: It would also be good to have that judge serve as a sort of clearinghouse for all complaints. He would begin to see a pattern with certain attorneys.
JRM: Well, we’ve had our Eighth District Judicial Conference recently, and won’t be having it for another year. I’m the head of it, and this wouldn’t be a bad topic for discussion there. Because this is a recurring complaint over the years, but nobody ever gets the judges involved. It’s something to think about because at the Eighth District Judicial Conference, you have a great amount of the bar there and all the judges are there, and when everyone puts their heads together on these kinds of issues, you get some great recommendations.
1. See Cuy. Cty. C.P. Loc. R. 13; Lake Cty. C.P. Loc. R. V(E)(1); Summit Cty. C.P. Loc. R. 17.02; Fed. R. Civ. P. 30 (c)-(d); N.D. Ohio Loc. R. 30.1.
Cleveland Academy of Trial Attorneys
News Spring 2011