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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