I’ve been embroiled in a multi-week deposition bonanza in a religious discrimination case. Yesterday, though, I experienced a first. We were deposing the plaintiff. Her lawyer is very seasoned. While my co-counsel was conducting the examination, I was astonished to see what looked like plaintiff’s counsel passing subtly passing his client a small, square post-it note with writing on it. I watched a little longer and, lo and behold, the plaintiff, while trying to respond to a question, looked down and read the note!
I called him on it. To my amazement, plaintiff’s lawyer became indignant. “I will counsel my client in any way I see fit,” he announced. “Really,” I said. ”Well, don’t pass notes while questions are pending.” A half hour later I saw him do it again. Again, I called him on it. This time he became even more indignant.
I suppose I should do some research to find out if coaching one’s client in deposition by means of written notes could somehow be an approved method of advocacy. If it’s not prohibited, it certainly should be. Who knows what he was writing to her. It was probably just something innocuous, like “slow down” or “just say yes or no.” On the other hand, it could have been substantive information, substituting the lawyer’s own memory for that of the witness.
Either way, depositions are not three-way conversations. They are question and answer sessions designed to uncover facts. I know there are all kinds of competing views on how involved the lawyer representing the witness should be in influencing the testimony, and I’m not above making speaking objections if I feel it’s necessary to protect my client. I’ll also “remind” my client that certain questions ask only for yes or no, or point out that he or she has answered the question. But I draw the line at passing notes back and forth during examination, even if only because it creates an appearance that something shady is afoot.
Like I said, my opponent is a very seasoned employment lawyer. He’s brought his young protege associate along with him to every deposition. I wonder if the protege is going to think it’s ok to pass notes to a deponent. Or if he’ll just assume all defense lawyers are jackasses because I called out his boss on something I think is unethical. My hope is that the young lawyer will think for himself, and decide for himself whether it’s ok to influence evidence gathering this way. Mentors are important and valuable, but not if they carelessly pass on bad habits to impressionable young lawyers who represent the future of our profession.