Almost two years into the pandemic, remote videoconferencing platforms have become the norm for attorneys taking depositions. The old practice of taking depositions in person has been replaced with remote technology.
While some of the nuances of in-person depositions, such as direct observation of body language, have been lost, many attorneys have embraced this advancement and enjoy the time and energy they save by not traveling to capture powerful case-strengthening testimony. As the saying goes, “with great power comes great responsibility.” In this new remote deposition environment, it may be tempting for attorneys to take advantage of the situation to gain a competitive advantage.
Such was the case for a Boston lawyer who admitted to coaching a client during a Zoom deposition while wearing a face mask. The opposing counsel noticed and sought sanctions after identifying dozens of instances where the attorney whispered answers to pending questions.
Massachusetts U.S. District Judge Indira Talwani's found that the lawyer committed misconduct when he "exploit[ed] the remote nature of the deposition to assist" a client in an employment lawsuit improperly.
Talwani disqualified the lawyer from further participating in the lawsuit, and she referred him to the court's chief judge to assess whether further discipline should occur.
The attorney's actions “undermined the truth-seeking purpose of discovery,” as Talwani said, and they may also land him in serious trouble.
As an attorney, I can certainly understand the urge to do whatever is in your client's best interest. However, the negative repercussions of partaking in client coaching far outweigh the benefits.
In this case, repercussions for the attorney could be as simple as an admonishment from the judge. They could also be as draconian as a formal discipline by the Massachusetts State Bar.
For the client, the repercussions are less severe, but evidence of coaching can be used against the client at trial to suggest that their answers at deposition were not truthful. Additionally, depending on the facts, that could cause an otherwise strong case to be significantly diminished in value.
Furthermore, under Federal Rule of Civil Procedure 30(d)(3)(A), opposing counsel is permitted to move the court for an order to terminate the deposition because the deponent or their attorney is acting in bad faith. If the motion is granted, then the at-fault party may be required to pay the reasonable expenses incurred in making the motion, including attorney fees.
Luckily for attorneys, it’s relatively easy to avoid this pitfall and the associated repercussions. I’ve compiled a shortlist of the top 3 things not to do during remote depositions to avoid falling into bad standing with the court.
Do not coach your client through the use of nonverbal cues, such as nods or shakes of the head.
Federal Rule of Civil Procedure 30(c)(2) states, "a person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion [to terminate or limit the deposition]."
Beyond those exceptions, attorneys are prohibited from instructing or influencing clients during depositions, remotely or in person.
Although we’ve all become accustomed to firing off a quick text or sending a Slack to communicate offline during meetings, you must abstain from this during depositions. Sending a text message, utilizing a videoconferencing platform chat function, or even writing a note are all expressly prohibited during remote depositions.
Some states have rules requiring that objections must be made directly and concisely. This means an objection made in an argumentative or suggestive manner, a "speaking objection," proceeds beyond what is necessary to give the grounds on which the objection is based.
Attorneys have used this tactic to coach a witness to say a particular thing, and therefore this manner is seen as improper.
Attorneys know better than to coach their witnesses in a deposition and should not try to take advantage of opportunities present in a remote environment, whether speaking through a mask or making nonverbal signals outside of the camera’s viewpoint.
Attorneys participating in a remote deposition should adhere to the same rules and professionalism they are accustomed to complying with when depositions were in person. The bottom line is if you wouldn’t do something in front of a judge, you shouldn’t do it during a deposition.
Suppose you feel the urge to employ one of these devious methods to control the testimony your client is giving. In that case, I will urge you to consider putting the same effort into preparing your client before their deposition takes place.
Successfully taking a deposition or representing a client being deposed both boil down to one thing; preparation. Investing time on the front end will pay off in the long run, especially if your case goes to trial. Read our advice for successfully preparing your client before their remote deposition takes place.