Here’s a New Jersey court rule for which we lawyers have only ourselves to blame. Rule 4:14-3(f) forbids attorney-client communication once a deposition witness has been sworn in, except with regard to asserting a privilege, a right of confidentiality or a court-ordered limitation. This “gag order” resulted from years of witnesses changing their answers after consulting with their lawyers during breaks.
And here’s an example of how the rule works in practice. A lawyer prepares a client for deposition in a complicated commercial case. The client testifies all morning. During the lunch break, the client realizes that she neglected to mention a fact that’s important to her testimony. When she tries to discuss the omission with her lawyer over the tuna sandwiches, the lawyer is supposed to ignore her and say something like: “So, how about those Knicks?”
And if this is the rule at depositions, what happens at trial? Fed. R. Civ. P. 30(c) states, for example, that the direct and cross-examination of a witness at deposition must “proceed as they would at trial.” We recently finished a complicated insurance coverage trial in which the carrier lawyers repeatedly asked the court to warn our witnesses that they couldn’t talk with us about the case at breaks. (Suspicious types, those carrier lawyers.) This edict became unwieldy when dealing with expert witnesses, because our experts had to testify about several discrete and complex areas. When we told the judge that the no-talking prohibition was a bit extreme, since we really needed to prepare our experts on the nights between trial sessions at which they’d testified, he crafted a “Solomonic” solution that…well, in retrospect wasn’t that great. No talking about fact testimony. No talking with experts about expert testimony already given. OK to talk with experts about testimony not yet given. Since one of our experts had been our corporate designee on environmental issues (and therefore a fact witness in addition to an expert witness), you can see what a Rubik’s cube this created.
Also, what happens if you choose to examine your own witness at deposition, to clear up a mistake or add some factual matter to the record? Or to engage in redirect examination of our own witnesses at trial? Can lawyers and clients talk for a few minutes before that happens? Not if you read the rule literally.
By the way, because I went to Catholic school, I’m very experienced with “no talking” rules (and, I probably shouldn’t say, ways around them). But in civil litigation, they really came to the forefront in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). In Hall, the Court wrote: “The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness's words to mold a legally convenient record. It is the witness -- not the lawyer -- who is the witness. As an advocate, the lawyer is free to frame those facts in a manner favorable to the client, and also to make favorable and creative arguments of law. But the lawyer is not entitled to be creative with the facts. Rather, a lawyer must accept the facts as they develop. Therefore, I hold that a lawyer and client do not have an absolute right to confer during the course of the client's deposition.”
Recently, in Chassen v. Fidelity National Title Ins. Co., a federal court in New Jersey, citing Hall, ruled that defendants in a class-action suit could question a class representative about her conversation with her attorney during a deposition break, so that they might ascertain whether she was coached on her responses. The case is a consumer fraud suit. The plaintiffs are homebuyers who claim that they were overcharged at closing for recording costs and that the defendants, about a dozen title insurance companies, are liable for the excess fees.
The class representative (Hoffman) had been deposed. After a late-morning break, defense counsel asked her whether she had spoken with her lawyer during the break about the answers she had given. Hoffman replied "yes." Her lawyer then objected and instructed her not to answer further questions. When defense counsel asked the basis for the objection, Hoffman’s lawyer responded that although lawyers cannot discuss witnesses' testimony with them in state court, the rule is different in federal court.
Not so, wrote U.S. District Judge Peter Sheridan: "Since improper coaching of a deponent during a short deposition break may undermine the truthfulness of the deposition testimony, the questioning of Ms. Hoffman … is appropriate." This affirmed the ruling of Magistrate Judge Salas. Magistrate Judge Salas had previously found that Hoffman’s lawyer had improperly spoken to Hoffman about her testimony after she was sworn in; that he had not shown that any privilege applied; and that defendants "had a right to explore whether the discussions counsel had with the Plaintiff may have influenced her testimony, thus interfering with the fact-finding goal of the deposition process."
Magistrate Judge Salas noted that although Hall is not universally followed, it has been adopted in the District of New Jersey. On July 31, 2009, in Ngai v. Old Navy, Magistrate Judge Shwartz cited Hall in requiring a lawyer to produce text messages he sent to a client during a video deposition. (You gotta love the new possibilities presented by technology.)
Speaking generally about how judges should handle allegations of coaching, Judge Sheridan referred to the privileged nature of attorney-client conversations and said courts "must consider the least onerous means of ascertaining the content of the conversation and disciplining the attorney responsible for 'coaching' the deponent, while protecting the conversation to the fullest extent possible." He suggested fining the offending lawyer and holding an in camera hearing.
So what are the takeaways from all this?
- Courts don’t trust lawyers. Many judges think that if a lawyer’s lips are moving, she’s probably lying. Lawyers and clients must accept that prejudice and deal with it.
- Lawyers and clients must proceed from the assumption that once the oath is given, they can’t talk to each other at all, no matter what court they’re in. To think otherwise is very dangerous.
- Lincoln said: "Give me six hours to chop down a tree and I will spend the first four sharpening the axe." Thoroughly preparing in advance for testimony is key, especially given the inability of lawyer and client to communicate after the oath is given. I know that busy executives don’t like to hear that. But strange things can happen in depositions. (If you don’t believe me, go to http://www.youtube.com/watch?v=ZIxmrvbMeKc&feature=related).