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Seminar Title: Deposition Misconduct: Ethical Boundaries and Practical Solutions
Instructor: Stephen M. Goldman
2012 Seminar offered via live toll-free conference call 1-3pm ET:
Sep 12, Oct 11, Nov 8, Dec 5
Description:
Deposition misconduct is a common problem because, except on rare occasions, judges are not present during depositions to control proceedings. This seminar explores the rules that prescribe ethically and professionally proper deposition conduct, and explores solutions lawyers may employ when such misconduct occurs.
Credit Hours: 2 CLE Hours (Ethics/General)
Accreditation:
AL, AR, CA, CO, DE, GA, IA, IN, KS, MS, NC, NJ, NM, NV, NY, OH, PA, SC, TX, VA, VT, WA, WI: 2 hrs ethics
MO, WV: 2.4 hrs ethics
OK: 2.5 hrs. general
TN: 2.0 hrs. dual
NJ: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 2 hours of total CLE general credit.
This program has been accredited by the Law Society of Upper Canada for 2 Professionalism Hours and 2 New Member CPD Hours.
Materials: Cases, opinions, and articles relating to seminar topic, plus appropriate correlating selections Including Behind Closed Doors: Preventing False Deposition Testimony
Dissemination: Materials sent via email
Seminar Content:
1.00 hr. Defining depositions and identifying ethical boundaries when defending depositions
I. What Depositions Are.
a. The Critical Venue for taking oral testimony in American civil cases.
b. The most salient characteristic of depositions is that the Judge is not present:
1. This means that deposition practice is essentially self-regulated by lawyers
2. Judicial intervention is rare, usually after the fact, and erratic.
c. We need to distinguish three kinds of discovery depositions:
1. Depositions of individual witnesses (Rule 30(b)(1)>
2. Depositions of organizations by designated witnesses.
3. Expert depositions.
II. Critical Ethical Boundaries When Defending Depositions.
a. Preparing the witness.
1. Preparing individual witnesses: The Anti-False Testimony Principle, which combines
1. The duty not to present false testimony to the tribunal (M.R.P.C 3.3(a)(3)); and
2. The duty not to falsify evidence or assist or counsel a witness to testify falsely (M.R.P.C. 3.4(b)).
2. Preparing 30(b)(6) witnesses.
1. The duty to prepare.
2. The different meaning of the Anti-False Testimony Principle in the 30(b)(6) context
3. Expert witnesses: The archaic and misguided rule that lawyers cannot speak to their witnesses under the cloak of the attorney-client privilege
b. Defending the deposition – Communication with witnesses.
1. The Bad Old Days: “Your job is to mess up the record.” Change began with Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.Pa. 1993)
2. “Objections except as to form are reserved to trial
1. Grounds form objection.
2. Reserved objections may still be made PROVIDED THAT such objections are not a means of coaching the witness.
3. Ban on speaking objections that have the purpose or
4. effect to coach the witness.
5. Coaching witnesses during brakes.
1. Rules vary from jurisdiction to jurisdiction in 30(b)(1) depositions
2. Why Rules against coaching during brakes cannot apply in 30(b)(6) depositions, if such depositions are to serve their purpose.
c. Defending the deposition – Instructions Not To Answer.
1. Protect the privilege.
2. Protect a limitation on the scope of discovery the court has imposed.
3. Protect against abusive and intrusive questions.
4. In 30(b)(6) depositions, protect against questions
that are beyond the scope of the subject matters for inquiry.
1.0 hr. Identifying ethical boundaries when taking a deposition, types of misconduct and strategies to avoid them.
III. Critical Ethical Boundaries When Taking a Deposition.
a. Avoid abusive conduct.
b. Avoid abusive questions.
IV.Some Common Types of Deposition Misconduct:
a. PROBLEM ATTORNEYS
1. The Coach.
2. The Testifier
3. The Objector
4. The Intimidator
5. The Professor
6. The Repeater
7. The Time Keeper.
b. PROBLEM WITNESSES
1. The Forgetful Witness
2. The Evasive Witness
3. The Belligerent Witness
4. The Impaired or Vulnerable Witness
5. The Lying Witness
6. The Wacko Witness
V. Strategies for Dealing with Deposition Misconduct.
a. Personal Power: Keep Control of the Deposition Room.
b. Personal Power: Don’t Lose Your Cool.
c. Making a Record.
d. Know when to call the Judge.
1. When you have enough of a record and
2. You have “capital” with the Judge that you can risk his or her displeasure.
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