Don’t Coach Your Witness During Depositions-Here’s How to Avoid It

Sanctions may be waiting for you if your zealous defense of a deposition of your client or witness rises to the level of witness coaching. There is nothing wrong with a proper objection (I encourage it, when called for, instead of playing iPhone games) but you definitely don’t want to make objections solely to tip off your client/witness to play along. How can you avoid this?

  1. Don’t just say “Object to form” or “objection, form.” State the underlying reason for your form objection. If it’s hearsay, say, “Object to the form, hearsay.” Same with foundation, etc. Continuously objecting with a pattern form objection could be interpreted as merely obstructing the questioner and tipping your witness to answer in a way differently than what she would have done without your interruption.
  2. Don’t object to every other question with “vague” or “ambiguous.” These are specific terms with specific meanings that shouldn’t just be a clue for your witness to ask for clarification or try to narrow down his or her answer to extinction.
  3. Don’t overly prepare your witness. I have several articles on this blog about preparing your witness about what to expect, what to wear, when to shut up, etc. but there is a difference between preparing a witness and practically writing a script that a witness memorizes and can’t deviate from.
  4. Don’t object to every single thing that you can possibly object to. Weigh the importance of the objection. If it matters, go for it. If you are really in doubt, go for it. But if the objection is to something harmless, let it go. Your transcript shouldn’t be littered with your name on every other line.

If we all follow these rules, we ultimately all win. Shorter depos mean cheaper depos. Cooperative depositions lead to future cooperative depositions and misconduct sanctions are avoided.

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The Post in Which I Break My Silence on My Former Boss…Judge Mike Maggio

Today, the JDDC has unanimously approved and released (courtesy of arkansasmatter.com) an agreed sanction against my former boss and current friend, Mike Maggio.

I will let Judge Maggio speak for himself here later (he’s agreed to an interview). He’s got a lot of thoughts on the matter and we’ve discussed them at length. Some I agree with, some I disagree with, and some that are just interesting for consideration. Today, I’ll simply offer some reflections outside of the substantive case.

Nothing prepares you for your daily reading of Gawker, only to see your former boss’s portrait splashed on the main page. And nothing prepares you for being so very disappointed by someone you otherwise admire.

I was Judge Maggio’s first law clerk. I was hired before I even passed the bar and I spent the first 18 months of my legal career working for him  in Faulkner, Van Buren, and Searcy counties. I started out an unmarried new grad; I got pregnant, then married, while I worked for him. I  finally left for private practice because the salary was a bit slim for my growing family. I would have stayed on as long as they let me, if the salary had been comparable to private practice, because I truly enjoyed working there.

The judge and I disagree about a lot of things: religion, politics, etc. That’s probably true of me and most of the 20th judicial circuit. But, Judge Maggio taught me the two legal practice rules that I still hold near and dear:

1. Never embarrass opposing counsel in front of their client, if you can help it.

2. Treat the legal process and the participants involved with dignity and respect, even if they are wrong.

Judge Maggio and I don’t see eye to eye on a lot of political issues, but, for all his faults, he was willing to hire the outspoken VP of the law school Young Democrats. We have always had very congenial discussions about controversial topics. I’ve never been afraid to give him my honest opinion on everything and anything, including his case.

I still don’t know how to reconcile the person I know with some of the things he’s said, but here’s what I’ve learned:

I’ve learned that sometimes the people we love and admire can disappoint us. I’ve learned that it’s really easy to say terrible things on the internet, whether you are an anonymous blog commenter or someone calling out a judge. I’ve learned that some things shouldn’t be open to politics and that I should never, ever be a judge.

I’ll be interviewing Judge Maggio soon and I hope to see you back here for that.

 

I Disapprove of What You Say, But I Will Never Tell You to STFU*.

An ounce of discretion is worth a pound of Plan B, as they say.
An ounce of discretion is worth a pound of Plan B, as they say.

Avid Blogger/Federal Judge Kopf of Nebraska has caused what polite people call “quite the stir” and the rest of us call a “shit storm,” after a post last week on his blog, Hercules and the Umpire, in which he told SCOTUS to “STFU.” If you don’t know what that means…welcome to the internet, I guess? There are online dictionaries out there on the google machine, should you need one.

Kopf is not exactly known for being a wallflower, in the blogging world or in the courtroom, but I can’t recall his blog ever making national news to this extent before.

After he received a letter from someone he admires expressing  OMG! Please stop already  a heartfelt desire for Kopf to hear him with open ears and gently reproaching him, he has decided to go easy on the blogging while he sorts it all out and invited input from others:

While I will make up my own mind, advice (anonymous or otherwise), particularly from experienced lawyers and judges, would be welcome. Some things are more important than others.

So, here is my input.

Dear Judge Kopf,

I am not a particularly experienced judge or lawyer. I am a fairly new lawyer, just ending my fourth year of practice. I am also a law blogger (or “blawger” as today’s obsession with portmanteaus dictates). A fairly irreverent one, at that. Like you, I think it’s important that everyday people see the judicial branch for the collection of imperfect humanity that it is. And, like you, I believe in a frank assessment of this best of all possible judicial systems.

I am not a new reader of your blog. I have been a sometime reader for a while. Even when I disagree with you, I have enjoyed your frankness and enthusiasm. Even when I am shocked by you, I love that your writing is fodder for conversation, not for the dusty bedside drawer.

Those familiar with my blog know that I have no problem with speaking freely. I am blunt and I have even been known to publicly chastise judges in my state for doing things that I deemed below the dignity of the robe (not exactly the safest possible practice, but it really does mean that much to me).

In short, I feel as the hip hop artist Kanye West once sang, “I hear your lyrics, I feel your spirit….

I read the anonymous letter that you posted from a trusted colleague, who urges you to stop blogging. I disagree that you should stop blogging; however, I would urge you to practice safe blogging methods and not to tell the Supreme Court to “stfu,” as the kids say. Blogging truthers (“bluthers”), like you and I, must be careful when exposing the soft underbelly of the Rule of Law that we do not give the appearance of being dismissive. Being dismissive is very different from being in disagreement. Disagreement says, “I’ve listened to you and you are wrong.” Being dismissive says, “Be quiet, honey, the menfolk are talking.”

We can express our sentiment that SCOTUS is currently behaving as a field team of Don Quixotes, tilting at windmills, while we, the ever suffering Sancho Panzas, roll our eyes to the heavens and pray that the Good Lord show them the light. But, we must still listen to the things the Quixotes say, when or if they decide to say them.

There is a wave of anti-government dissent sweeping this country right now. People who feel that the power of the government, and particularly the federal government, should be declared impotent. Let’s not fan that fire. 

I think, from my rather small volume of experience, that most litigants can handle a ruling against them from a judge, if that judge has listened and carefully considered their perspective. I do not think that most people can handle being summarily dismissed. Similarly, judges want litigants to fully consider the opinion rendered against them without simply dismissing it as unfair. 

I know that your point about the Hobby Lobby ruling was simply that SCOTUS, like the employees of Hobby Lobby, should practice abstinence when possible, but that is not the message in the headlines. In blogging and bedroom activities, one can be expected to anticipate the reasonable consequences of one’s actions, no?

Saying “stfu” is not only discourteous, it appears dismissive. Much like another child, that’s something that we simply can’t afford right now. 

I hope that you will continue blogging. I hope that you will continue to be interesting. And I hope that you will set an example of how to come back from an emergency blogging screw up, because I may need it someday. 

 

 

*Unless you are Glenn Beck or Sarah Palin. You can both STFU, because you have lost the privilege to be listened to. That’s on you, though. 

ABA: Social Media Stalking A-OK

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The ABA says that there are no ethical issues with scouring social media sites for information about potential jurors (or even jurors in deliberation. The opinion compares this information to any other publicly available information. LinkedIn is also declared free game, contrary to an earlier New York Bar Association.

Some attorneys have said they still won’t do Linked In searches, because it notifies the juror that their profile has been viewed by the attorney and it may make them feel uncomfortable about serving. Note that you still shouldn’t add the jurors as a friend and you shouldn’t follow them or “otherwise invade their private Internet areas.”