How Low Can You Go? Analyzing Deposition Misconduct and Avoiding Common Deposition Mistakes
Environmental, Mass Torts and Products Liability Litigation Committees’ Joint CLE Seminar, Program Materials, January 2013
American Bar Association 2013
11 Pages Posted: 5 Feb 2013 Last revised: 11 Feb 2013
Date Written: January 5, 2013
Depositions represent a key discovery tool in litigation. Attorneys typically utilize depositions for any number of reasons, such as to obtain admissions from the opposing party for use at trial, to secure testimonial evidence that eliminates or creates genuine issues of material fact for summary judgment motions, to learn about the opposing party’s case, and/or to attain a preview of the other party’s arguments or strategies. Attorneys must prepare diligently for depositions they are taking or defending. Failure to prepare a witness for deposition or failure to prepare adequately to take a deposition may result in negative consequences for the client and its case, as well as sanctions against the attorney. Also, if an attorney defending a deposition does not stop or subdue the testifying witness’s unruly or obstreperous behavior, then the attorney may also be sanctioned for failing to act. Coaching a witness can also result in sanctions for an attorney, and certainly telling a witness explicitly what to say during a deposition could as well. This article discusses attorney misconduct in cases from several jurisdictions that relate to the following common mistakes made concerning depositions: failure to prepare for a deposition, failure to act during a deposition, and coaching a witness. This article also provides practical insight on how to avoid these mistakes.
Keywords: deposition preparation, deposition misconduct, obstreperous, witness preparation, coaching a witness, litigation practice, defending a deposition, taking a deposition, deposition sanctions
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