By Michelle R. Adams
Someone must teach that good manners, disciplined behavior, and civility – by whatever name – are the lubricants that prevent lawsuits from turning into combat. More than that, civility is really the very glue that keeps an organized society from flying into pieces. … I submit that lawyers who know how to think but have not learned to behave are a menace and a liability, not an asset, to the administration of justice.
– United States Supreme Court Chief Justice Warren E. Burger, 1971.
While litigation by its nature is adversarial, this should not keep lawyers from being civil. To the contrary, as zealous advocates for our clients, we have a clear duty to act civilly.
As a young lawyer, I have quickly learned that this friction between our duties to our clients and our duty to behave civilly becomes overly apparent at depositions. Without a doubt, depositions are an extremely effective and widely used discovery tool. They present great opportunity to gain valuable facts that can be used against an opponent. That being said, they also present great opportunity for incivility, especially because depositions are generally held outside a judge’s supervision.
While we should approach all aspects of any deposition professionally and ethically, we should proceed with particular caution during deposition breaks. If you are counsel for the deponent, any conversation you have with your client during a break may generate ill will and suspicion, despite your best intentions.
The Indiana Supreme Court has not instituted guidelines for the proper conduct of parties and their counsel at depositions. Other courts, however, have established guidelines instructive to Indiana lawyers.
The United States District Court for the Southern District of Indiana adopted a local rule governing attorney conduct at depositions, L.R. 30-1 Conduct of Depositions. This rule addresses what questions deposing counsel may ask a deponent if the deponent’s counsel has asserted a claim of privilege as a basis for an instruction not to answer. Notably, this rule does not address deposition breaks.
The best known and probably most frequently cited case on the issue of attorney deposition conduct is Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). In this case, the deponent’s counsel frequently and rudely interrupted deposing counsel’s questioning. He insisted on conferring with his client to discuss the meaning of deposing counsel’s questions before the deponent answered the questions, despite multiple objections from deposing counsel. Due to the judge’s irritation with this behavior, when the matter was brought before him in court, the judge issued stringent guidelines, effectively abolishing deponent-attorney conferences during deposition breaks. Id. at 530-32. These guidelines were meant to prohibit witness coaching and to limit objections to only those that preserve privileges that would otherwise be lost. Id. at 531-32. The judge did allow a limited exception when a conference is requested for the sole purpose of deciding whether to assert a privilege. Id.
While some courts have adopted the bright-line rule set forth in Hall, the trend in several states appears to reject the court’s holding in Hall “as a remedy worse than the disease.” Chesbrough v. Life Care Centers of Am., Inc., 2014 WL 861200, *6 (Mass. Super. Feb. 14, 2014). “[T]he greater weight and better reasoned authority that has evolved in the area of lawyer-client conferences during depositions has come to reject Hall as an untenable and impractical interference with the attorney-client privilege and right to counsel. In its zeal to root out witness coaching from civil deposition practice, Hall prescribes a remedy now widely regarded as more destructive than the ill it seeks to cure.” Id. at *5. The majority of the cases finding against Hall specifically focus on the importance of the client’s right to counsel and the vitality of the attorney-client privilege. In addition, some courts note that the canons of legal ethics already provide safeguards against the most egregious issues presented by attorney behavior at depositions.
As Indiana lawyers, without clear guidance from the Indiana Supreme Court in either direction, we would do well to heed the following advice:
• Do not assume that a conversation held with your client during a deposition break falls within the attorney-client privilege, as this issue is clearly unsettled.
• Abstain from asking for a break during a deposition when a question is still pending for the purpose of speaking with your client about that particular question.
• Remember, the importance of civility cannot be underestimated.•
Ms. Adams is an associate with Clendening Johnson & Bohrer in Bloomington and holds a B.S. in nursing from Indiana University. The opinions expressed in this article are those of the author.