Don’t get cute at a deposition with your witness–by using objections to coach the witness and also to interrupt opposing counsel’s interrogation–even if you win at trial

My pal, Judge Mark Bennett from up the road in Sioux City, was a great trial lawyer and is a great trial judge. He is also a wonderful writer. Recently, the judge imposed sanctions on his own motion on a lawyer who defended a deposition because Judge Bennett thought the lawyer’s conduct at the deposition was improper. This order followed a successful defense at trial. Whatever Judge Bennett writes is worth reading, but this opinion is especially deserving of your attention, particularly if you are a federal practitioner who tries civil cases.

Here it is: Sanctions Order

RGK

31 responses

  1. The part that struck me the most was the comments about Iowa lawyers v. out-of-state lawyers. I think those same comments apply to Nebraska lawyers and the law schools here. Nebraska lawyers are generally good to deal with, but some of those out-of state “Rambos” can make you want to retire at 45.

  2. It’s very nice to see a trial court judge taking on abusive deposition tactics. Too many judges (and, for that matter, licensing boards) ignore conduct that is blatantly inappropriate and calculated only to obstruct.

    As a litigator myself, though, I’m not clear what I am supposed to do. If I object to “form,” I have made an improper objection. If I object to “form – ambiguous,” I run the risk of being accused of witness-coaching if my witness actually listens to my objection, takes time to think about it, and says, “I can’t tell you whether I’ve stopped beating my wife because the question is ambiguous.”

    Fortunately for me, my witnesses never listen to anything I say and the risk of being accused of witness coaching is beyond remote.

    Also, contrary to what is implied at *7 “hearsay” is not an appropriate objection at a deposition.

  3. Certainly an entertaining read, and I’m usually a big fan of Judge Bennett. But, doing this sua sponte is a little strong for my taste.

  4. I will teach this case next year in Civil Procedure. Having defended and taken more than few depositions in my life, this is all-too-familiar. My (non) favorite is when counsel representing the deponent interjects: “Answer only if you know.” This inevitably produces “I don’t know” from the witness.

    One of the side effects of video-recorded “trial depositions” is that the lawyers behave much more appropriately. Realizing that their performance is likely to be shown to the jury, they act more like rational persons.

    “I wish you wouldn’t have asked that question” is not a proper objection.

  5. Francis,

    Regarding your second to last point, I once took a deposition where my opponent later became the Chief Justice of the Nebraska Supreme Court. The deponent was his client. He was so “scared” of my withering examination of his client that he said nothing, and never once looked up from reading the Wall Street Journal as he sipped his morning coffee. I was a real killer, don’t you know!

    Thanks for writing.

    All the best.

    RGK

  6. “I wish you wouldn’t have asked that question” is not a proper objection.

    Sounds to me like a very serious clue for the lawyer who asked the question, though.

    Eric Hines

  7. Michigan lawyer,

    I’ll tell you a secret: Me too! But, to be fair, Mark is known for demanding very high standards, so no one can credibly claim surprise. All the best.

    RGK

  8. Jeanelle,

    While I know what you mean, we have local “Rambos” too. Frankly, I can handle the “Rambos,” it is the “terminally dumb Rambos” that give me the most trouble. “Mean” I can fix. “Dumb” not a chance.

    All the best.

    RGK

  9. Judge:
    I read Judge’s Bennett’s Order and find the sanction imposed to be novel and, perhaps, helpful to those who view the training video. However, given that the training video will not be seen outside of Counsel’s firm, how will it deter other practitioners who are liable to make the same errors and who regularly appear in front of this judge? And, if they do make the same errors, will they be treated as was Counsel or, since they were put on notice by this Order, likely to be treated more harshly for the same conduct (and is that fair?)?
    Robert

  10. Very interesting. I clerked in a district where “objection as to form” is the preferred form. That difference aside, the judges I clerked for very rarely sanctioned attorneys, but this was good way to really annoy them (sanctions were imposed at least once during my tenure). It just looks so egregious when it turns into a call-and-response between the defending attorney and the deponent. Quite a creative sanctions as well — I wonder if it will be appealed (or whether counsel will heed the adage, admittedly unpopular in litigation, about discretion and valor).

  11. Our evidence teacher-a brilliant and very kind federal judge-made an hour and a half long video where, among other exemplars of objections, he used the objection from Perry Mason of “Incompetent, Irrelevant, and Immaterial.” Objection to form sounds similar, although more concise. He told us (quite politely and gently) that both judges and counsel will probably think less of us for objections like that. His class was excellent, and I wish he taught more like it. I would take every single one of them.

  12. Tort,

    This is just me. But, if I were the lawyer, I would take my lumps. The judge was complimentary about the lawyer’s trial skills, so I don’t see any long lasting harm from the creative and fairly gentle sanctions. But, all that is easy to say for me, my gig is for life.

    All the best.

    RGK

  13. Robert,

    The order itself will provide general deterrence to others. Indeed, I got an e-mail yesterday where a trial lawyer told me he was sending a copy to every member of his bar association.

    All the best.

    RGK

  14. Its a good opinion and entirely appropriate, in my opinion. The Judge had to do something, it seems to me, simply because the objections and interruptions were so numerous. One would think the plaintiff lawyer would have been more assertive in not letting opposing counsel hijack the deposition. But, perhaps there is more to it than this.

  15. Now, if we could only devise a similar method for slut-shaming the demigods on our benches….

  16. To be clear. Nobody ever directly says “I wish you wouldn’t have asked that question” but a lot of these sorts of objections really boil down to the fact that there’s nothing wrong with the question, but the answer will produce useful information if the answer is truthful.

  17. Judge Kopf:

    I am a regular reader of your blog and a big fan.

    Thanks for posting a copy of Judge Bennett’s sanctions opinion. I agree with your post that Judge Bennett is a wonderful writer, but, on the merits, the opinion strikes me as terribly wrong, unfair, and out of touch. I hope it gets reversed.

    Judge Bennett sanctioned the lawyer at issue even though her opposing counsel, a lawyer with 40 years’ experience (http://www.minnesotamedicalmalpractice.com/attorney/stephen-rathke.php), never complained during the deposition about the conduct — or at any other time. While Judge Bennett surely has the power to issue sanctions under those circumstances, the fact that an experienced opposing lawyer did not complain should have given Judge Bennett serious pause before doing so.

    Overall, Judge Bennett seemed to have some observations about discovery to get off his chest, but, to me, he should write a law review article — or a blog post! — rather than using this particular lawyer as the vehicle to issue sanctions that no one requested.

    Turning to the specifics, the deposition conduct that Judge Bennett cited as objectionable was, to my eyes, largely not.

    First, Judge Bennett complains about objections that seem perfectly proper, such as the following:

    “Q. Are you familiar with the term ‘immunocompromised’?
    A. Yes.
    Q. And that would include premature babies?
    COUNSEL: Object to the form of the question, ‘that would include premature babies?’ It’s a non sequitur.”

    According to Judge Bennett “there is absolutely nothing confusing about the question.” Really? It makes no sense to me, and Judge Bennett doesn’t say what he understands it to mean.

    The word “immunocompromised” means “having the immune system impaired or weakened (as by drugs or illness)” (http://www.merriam-webster.com/dictionary/immunocompromised). When the witness says she is familiar with the term, what the heck does it mean for the questioner to follow up with: “And that would include premature babies?” Does the questioner mean to ask whether premature babies can be immunocompromised? Does the question mean to ask whether the witnesses is familiar with the term as it applies to premature babies? The follow up question is, in fact, a non sequitur!

    In another example, the lawyer objected to the term “significant” as “vague and ambiguous” and Judge Bennett concluded that the objection was made “for no apparent reason, other than, perhaps, to coach the witness to give a desired answer.” But “significant” is ambiguous! If I used a fuzzy word like that at a deposition, I’d expect an objection to form.

    Second, Judge Bennett complains about “coaching” when the lawyer stated the objection as succinctly as possible. In one example, the lawyer objections to a question by saying “It’s a hypothetical; it lacks facts.” In another, the lawyer just says “Objection to form.” In both cases, the witness obviously reacts to the objection, but what is the lawyer supposed to here? Could those objections be stated more succinctly? Judge Bennett seems to overlook the fact that there is some level of suggestiveness that is inherent and unavoidable whenever an objection is made.

    Third, Judge Bennett seems to pronounce a new standard for objecting to confusing and misleading questions:

    “Unless a question is truly so vague or ambiguous that the defending lawyer cannot possibly discern its subject matter, the defending lawyer may not suggest to the witness that the lawyer deems the question to be unclear. Lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question.”

    But a defending lawyer can’t know if the question is clear to his or her client. While some clients will speak up and ask for clarification on their own, others will not – and we are there to protect them! Judge Bennett seems to overlook the lawyer’s role in protecting the client from questioners who try to create a misleading or confusing record.

    A few other points:

    1. Judge Bennett claims to put lawyers on notice that “[u]nspecified ‘form’ objections are improper and will invite sanctions.” But he concedes that these are common in other courtrooms. Are lawyers practicing before Judge Bennett expected to find this opinion? To put lawyers on notice, this should go in his local rules.

    2. The training video Judge Bennett orders must “provide[] specific steps lawyers must take to comply with [the opinion’s] rationale in future depositions in any federal and state court.” But other federal and state courts will surely disagree with Judge Bennett on some of these issues — including, whether it is appropriate to object to “form.” It seems rather presumptuous for Judge Bennett to impose his views on multinational law firm.

    3. Footnote 8 about the “long and storied tradition and culture of civility” of Iowa lawyers is nauseating. Does Judge Bennett really have any meaningful way to measure the “civility” of Iowa lawyers as opposed to lawyers in other states? What is the point of this footnote other than to self-congratulatory grandstanding or finger-wagging at the “big city” lawyer he’s sanctioning?

  18. “But a defending lawyer can’t know if the question is clear to his or her client. While some clients will speak up and ask for clarification on their own, others will not – and we are there to protect them! Judge Bennett seems to overlook the lawyer’s role in protecting the client from questioners who try to create a misleading or confusing record.”

    ++++++++++++++

    This is a good point.

    The opinion conceptualizes a deposition as a conversation between equals. It assumes that a witness who is not trained in the law and not experienced in depositions is going to be able to parse the meanings of words and phrases with the lawyer taking the deposition.

    This assumption is dumb.

    It may be true of a witness who is a professional — a physician or a corporate executive. It is not true for the vast majority of people who find themselves in the hot seat, working class people who may not have finished college or even high school. Most witnesses simply lack the knowledge, training, ability, and gumption to effectively respond the attorney taking the deposition.

    There are two potential outcomes: Either (1) their lawyer protects them from unfair questioning, which includes the objections that Judge Bennett finds to be tacky and sanctionable; or (2) the deponent gets rolled.

  19. Charles,

    First, most of your criticisms of Judge Bennett’s sanctions order are worthy of very careful attention should another trial judge be inclined to issue a similar order in a similar case under similar circumstances.

    Second, I am amazed at the various reactions this order has prompted. As opposed to your trenchant criticism of Judge Bennett’s order, I have received (via e-mail and otherwise) very strong support for the order, particularly from that segment of the bar that represents plaintiffs.

    Third, I wonder whether the problem is really a “cultural” or “regional” one. That is, different bars in different parts of our vast nation have developed strikingly different views about what is and is not acceptable deposition practice. If that is so, I honestly don’t know what do.

    Fourth, if nothing else, Judge Bennett has clarified his views and that is a very good thing for lawyers who practice before him. While it is true that one lawyer will suffer, the sanctions, even if wrong, are mild. That is to say, Judge Bennett’s heart was in the right place. He is endeavoring to educate rather than punish. Note that Judge Bennett was complimentary of the trial skills of counsel. That doesn’t take away the sting from the lawyer, but it does provide an important perspective for that lawyer and the rest of us.

    Fifth, Judge Bennett has started an important, dare I say national, conversation. You have, rightly, engaged in that dialogue. I am very glad you did. I hope others do too.

    Sixth, my rule for depositions is pretty simple: If I conclude that you turned a deposition into a mud wrestling match, I will use a fire hose to wash you off. Whether Mark’s case would have called for the horrible hose–had the depo., been before me on a motion for sanctions–is a question I will leave for another day.

    All the best.

    RGK

    PS. If you think I am tap dancing, you are right! Frankly, since no one complained, I am too darn lazy to do what Mark did in his case.

  20. Ouch! Fair enough, though. I kinda like the idea that I am one of the demigods, but that’s a different story.

    By the way, even if I cop to the demigod label, I am still waiting for you tell me if I am corrupt and whether you have any evidence to back up such a claim. But, we have plenty of time.

    All the best.

    RGK

  21. Francis,

    Good points. That said, Judge Bennett was not confronted with a lawyer trying to protect a witness who was among “working class people who may not have finished college or even high school” and who were scared out of their minds by an overly aggressive questioner.

    All the best.

    RGK

  22. Judge —

    Setting aside for a moment whether the conduct was right or wrong, I think it is troubling that Judge Bennett reached out sua sponte — and long after the conclusion of discovery — to sanction this lawyer. I presume the opposing lawyer is competent and capable of filing a motion. Ours is an adversarial system in which judges decide what is teed up for them by the parties (unless the matter is jurisdictional or in some other way a mandatory subject for consideration). This amounts to an advisory opinion — entered sua sponte and after the conclusion of the trial. If Judge Bennett believed these points were worth making, he should have waited until someone placed an appropriate dispute before him. To echo another commenter here, if Judge Bennett believed these guidelines were important to publish, he could have written an article for a bar journal and included a reference to it in his initial Rule-16 order.

    (And I don’t think you can call any sanction “mild.” Such a finding will have consequences that will follow this lawyer. For example, many bar admission forms ask about just such things.)

  23. I certainly hope that no lawyer ever would ask such a thing out loud. Nevertheless, the clue should be obvious from the objections a lawyer does raise along these lines. Even if he doesn’t raise the objections, his body language would, in many cases, offer the same clues.

    Eric Hines

  24. Some observations, in no particular order, from a layman.

    I think it is troubling that Judge Bennett reached out sua sponte — and long after the conclusion of discovery — to sanction this lawyer.

    Every officer of the court has an obligation to speak up when he observes inappropriate behavior. A judge, at the top of the pyramid, should be the most circumspect in doing so, but his own obligation is not cancelled by this legitimate force toward reticence. Judge Bennett’s sanction also was delayed as long as it was so as to minimize its effect on the course of the trial, an entirely appropriate delay.

    I don’t think you can call any sanction “mild.” Such a finding will have consequences that will follow this lawyer. For example, many bar admission forms ask about just such things.

    As well they should. Just as employers–and a whole host of venues–consider the quality of a man’s work record. Or should that be kept secret, too?

    Finally, of course the sanction was mild. The sanctioned counsel is not identified in any way, unless the counsel chooses to be identified, and the video to be produced as the sanction is, essentially, limited to the counsel’s law firm unless the counsel or the counsel’s firm chooses to publicize it.

    If counsel takes the matter seriously, this sanction is an ideal community service type of response to a behavioral failure: the law firm will benefit, and the lawyer in question will have learned something and will be a better lawyer for that.

    Eric Hines

  25. Eric–

    I appreciate your thoughtful comments (and I mean that sincerely), but I disagree with your suggestion that Judge Bennett had any sort of obligation to reach out here. One of the hallmarks of our system is that, unlike in some European countries, our judges aren’t prosecutors with a general warrant to root out bad behavior. The parties drive litigation here, and judges decide the disputes the parties put before them. There are good reasons for that.

    There’s also an underlying assumption in your comments that the conduct here truly was atrocious. A fair number of people would disagree with Judge Bennett — or at least conclude that the conduct was less egregious than the judge suggested.

    Finally, and you’ll have to trust me on this, the judge’s order was sure to be widely circulated, and the lawyer’s identity not far behind. The only people who gossip more than teenagers are lawyers.

  26. American judges don’t act on their own initiative? Certainly it should be rare, but a judge can’t promote justice and effective operation of the judicial system if he turns a blind eye to abuses of the operation of the system solely because nobody else squawks.

    The sanctioned behavior wasn’t atrocious, but it was egregious enough to draw the eye of a judge. Or maybe we’re quibbling over a term of reference here. In the end, though, that eye produced a sanction commensurate with the offense–a slap on the wrist that, if taken seriously, will teach rather than merely punish.

    As to the order being widely circulated, I’ve no doubt about the gossip aspect. However, that’s on the lawyers involved, beginning and ending with the lawyer himself and his closest associates. Color me unsympathetic.

    Eric Hines

  27. Dear Case or Controversy,

    I, too, am a little queasy with imposing sanctions on Mark’s own motion. However, I have done something somewhat similar but in very different circumstances. On my own motion, but first giving counsel notice and an opportunity to respond, I imposed sanctions of dismissal without prejudice and a caution in a case that I thought was particularly eggregious. See Bowen v. Cheuvront, 516 F. Supp. 2d 1021 (D. Neb. 2007)(suit against judge for instructing victim not to use the word “rape” when testifying; dismissing case on on own motion prior to service and imposing sanctions after notice and an opportunity to be heard; Using this headline: “You’ve got to be very careful if you don’t know where you’re going, because you might not get there.”, I additionally wrote: “For many years, the Supreme Court has made it plain that a federal judge should not use his or her discretionary power under the declaratory judgment statute to interfere with a pending state criminal prosecution except in the most extraordinary of circumstances. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Because the plaintiff and her counsel have failed to acknowledge Samuels, let alone deal with its implications, they have also failed to show cause why Rule 11 has not been violated by the filing of the plaintiff’s complaint. As a consequence, I will dismiss this case without prejudice and caution the plaintiff’s counsel to be more careful.”).

    East Coast and Nebraska counsel for the plaintiff, and the National Organization for Women, were very upset with me. On the other hand, I was very upset that the plaintiff’s lawyers filed a complaint seeking declaratory relief in federal court against a state trial judge that interrferred with a pending criminal case the state trial judge was handling. I thought I needed to stop such behavior cold because the state case was drawing national attention and I was very worried that the federal court would be dragged into, and mess up, the pending state criminal prosecution of a serious felony. Was I right to do so? Who knows?

    What’s my point? I got a lot of crap about the Bowen case, and perhaps I deserved it. One of the hard things about being a federal trial judge is that you alone must decide. Deciding to pull the sanctions trigger by yourself is a hard call, but sometimes it is necessary. While I may not have done what Mark did (and I may think “form” objections as shorthand are sometimes OK when you really mean the question is unintelligible), I sure can’t critize his judgment either.

    All the best.

    RGK

  28. Judge —

    I think your example is distinguishable in an important way. You gave notice and later dismissed the case because you were concerned that it sought action beyond the authority of a federal court. That’s akin to dismissing a case purportedly brought under the diversity jurisdiction when the complaint pleads that the parties are from the same state. The federal court has no jurisdiction, and it is required to note and act on that problem.

    The situation Judge Bennett confronted did not have to do with his jurisdiction or authority and, if the plaintiff’s counsel thought the deposition conduct serious enough for judicial intervention, he could have asked for Judge Bennett to act. He didn’t.

    Think of it this way. Would it be materially different if Judge Bennett went through the written discovery responses sua sponte and concluded that the defendant made too many “boilerplate” objections or redacted documents too liberally? What if Judge Bennett announced at the charging conference that he planned to instruct the jury that the defense had admitted certain facts because he had sua sponte reviewed the defendant’s responses to requests for admission and concluded that they did not properly deny the requests?

    Remember that my point is not to debate the correctness of the underlying deposition objections but only the propriety of Judge Bennett’s sua sponte action.

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