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Deposition Skills 101: A Lawyer’s Behavior Matters

There is a line at the tail end of Francis Ford Coppola’s The Rainmaker that regrettably carries meaning in the profession of law, year after year. That line, delivered by “Rudy Baylor” (played by Matt Damon), was as follows:

“Every lawyer, at least once in every case, feels himself crossing a line that he doesn’t really mean to cross. It just happens. And if you cross it enough times, it disappears forever. And then you’re nothing but another lawyer joke, just another shark in the dirty water.”

This author started taking and defending depositions in the early 2000s. My training was laser-focused on the content of the questions, witness preparation, and above all else, the insatiable—and short-sighted—quest to box in the witness to the point where a “gotcha” moment is achieved and you can pat yourself on the back for being the second coming of Perry Mason.

Absent from my training was a discussion about how a lawyer should behave himself or herself at deposition, and why that behavior is relevant. Can you recall a deposition skills training course, be it a CLE or otherwise, where you were taught about the implications of your behavior?  I cannot. Any lawyer that has taken or defended depositions has likely received an education in how to behave (and not behave) at deposition.

In-person depositions often take place in conference rooms. Putting aside situations where a special discovery master may be present, in the ordinary course there is no judge or other arm of the court observing the deposition. Instead, the lawyers and the parties are walled off from the trier of fact. It is that separation from the watchful eye of the trier of fact that can sometimes transform those same conference rooms into a breeding ground for lawyers behaving badly.

To think that your conduct at deposition is irrelevant because you are safely distanced from the trier of fact is a grave mistake. Perhaps your case will settle and your bad behavior at deposition will be forgotten. But that is not something to count on. Behaving badly at deposition can make you the target of a motion for sanctions, which is precisely what happened in Constantina Bacopoulou DDS PC, et al. v. Carnegie Dental PC, et al. 650010/2022 (Hon. Andrea Masley).

I am not going to identify the attorneys involved in the case. The goal of this article is not to pile on; rather, my objective is to emphasize why professionalism at deposition is something that needs more attention in the practice of law.

Briefly, the plaintiffs in Constantina alleged breach of contract, $900,000 in damages and related relief regarding alleged misconduct following the sale of the defendants’ dental practice to the plaintiffs. One of several motions before Judge Andrea Masley was plaintiff’s motion to sanction defendants and their counsel for their “improper, uncivil and unethical behavior throughout the course of discovery.”

The Court granted plaintiff’s motion for sanctions against defendants’ counsel, who made statements that “were clear violations of the Rules of Professional Conduct 8.4(g).”  Rule 8.4(g) includes various prohibitions including that a lawyer shall not “engage in conduct in the practice of law that the lawyer or law firm knows or reasonably should know constitutes” various forms of “harassment,” which term is defined to include “verbal conduct, and/or nonverbal conduct” that is “derogatory or demeaning.”

Some examples of the statements made by defendants’ counsel included:

• “Why don’t you ask these questions properly? … That’s your job as a professional”;
• “Call the judge if you are upset”;
• Explaining to the witness how a deposition works and remarking “this is really how we do it” – a dig at opposing counsel who had taken the witness’ direct examination;
• Accusing plaintiff’s counsel of “putting on an act”;
• Admonishing plaintiff’s counsel that she “needs a lecture”; and
• When plaintiff’s counsel asked if the comments of defendants’ counsel were made “because she is a woman” the answer from defendants’ counsel was “Yes.”

In finding that sanctions were appropriate, the Court determined that the statements of defendants’ counsel at the nine-hour deposition in question were “deliberately offensive and gender based when in context.”

Further, Commercial Division rules bar “speaking objections.”  The Court added that defendants’ counsel “repeatedly cut off the witness.”

At the same time, the Court took notice of plaintiff’s counsel’s behavior at deposition which “contributed to the delay with unnecessary bickering.”  Plaintiff’s counsel “antagonized” defendants’ counsel “from the start of the deposition,” which included telling the witness to “ignore” defendants’ counsel, not to take him “seriously”, and, making repeated threats to “call the court evolving into a hollow threat.”

In short, “Unnecessary and childish arguments between both counsel delayed this deposition.”  The following is but one example of the back and forth identified by the court:

“Please don’t interrupt me again, will you counsel. No, I will get my objections on the record, and I will stop listening – you should stop doing what you’re doing. It’s become totally obnoxious. Why don’t you calm down and ask your questions, and when I want to make an objection he’ll wait until I make the objection. That’s how it goes. Okay.”

“Okay.”

“So just chill out. Chill out.”

“Thank you for lecturing me.”

“You need a lecture.”

“– on the objection that I’m obnoxious for the second time on the record. After you –”

“Oh, the name caller of all. Keep going.”

The seminal paragraph in Judge Masley’s decision is as follows, and I can only hope that these words are, from this point forward, read out loud at the start of every deposition skills seminar attended by aspiring—and experienced—lawyers:

It is clear from the record that lack of civility among attorneys perpetuates scorn for lawyers, the courts, and ultimately the rule of law. ‘Society at large, and the legal community in particular, is increasingly less tolerant of sharp practices and sharp behavior that verges on harassment. It is a question of enlightened self-interest for lawyers and their clients to be tough yet civil’ … During depositions, lawyers are expected to ‘conduct themselves with dignity and refrain from engaging in acts of rudeness and disrespect’ (emphasis added) (citations omitted).

Whether we’re talking about depositions in matrimonial actions, breach of contract cases, or otherwise, our conduct at deposition matters. The irony, perhaps, in all of this is that a lawyer can add far more value to his or her client by prioritizing professionalism at deposition. Somehow, that message needs to be given its due, because the relevance of the legal profession may just depend on it.

“Deposition Skills 101: A Lawyer’s Behavior Matters,” by Alan Feigenbaum was published in the New York Law Journal on August 3, 2023.

Reprinted with permission from the August 3, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.