Month: August 2025
How to Prevent Deposition Misconduct: A Practical Guide for Legal Professionals
Depositions are a vital part of the discovery process in civil litigation. When conducted properly, they uncover critical facts, lock in testimony, and help streamline trial preparation. But when misconduct creeps in—whether through coaching, intimidation, excessive objections, or obstruction—the integrity of the deposition suffers, and so does the pursuit of justice.
Whether you’re a young associate preparing for your first deposition or a seasoned litigator aiming to set a firm tone, knowing how to prevent deposition misconduct is essential. Here’s how to keep things professional, efficient, and within the rules.
1. Know the Rules Cold
The Federal Rules of Civil Procedure—and your state’s corresponding rules—govern what’s allowed and what’s not during a deposition. So do any standing orders or local court rules. Rule 30(c)(2) of the FRCP, for instance, explicitly limits objections to those “noted on the record,” typically only as to form or privilege.
Tip:
Keep a copy of applicable rules with you during the deposition. If things get tense, you can cite them calmly and confidently.
2. Set Expectations Early
Before the deposition starts, it’s wise to have a brief off-the-record conversation with opposing counsel to set expectations about:
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The scope of permissible objections
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Coaching behavior
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Break protocols
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Speaking objections
Even a short discussion can reduce tension and increase professionalism.
3. Use Clear Instructions with the Witness
If you’re defending a deposition, coach your client thoroughly beforehand—but never during. Explain how to:
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Pause before answering
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Ask for clarification if needed
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Only answer the question asked
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Not look to you for help once the deposition begins
Let them know you’ll only object when appropriate, and that they should not interpret objections as cues on how to answer.
4. Stay Calm and Professional
Misconduct often escalates because emotions do. If opposing counsel becomes aggressive, disruptive, or unprofessional, stay calm. Your professionalism may help de-escalate the situation—and if not, it will reflect well on you if the issue needs to be addressed later in court.
5. Object Properly—and Sparingly
Objections should be made only when necessary and in accordance with the rules. Avoid speaking objections or suggestive commentary. If opposing counsel crosses that line, make a clear record:
“Objection to the speaking nature of that objection. Please refrain from coaching the witness.”
If needed, ask for a break and, in extreme cases, consider calling the judge.
6. Don’t Hesitate to Go on the Record
If misconduct is persistent, document it. Go on the record to:
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Describe the behavior
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Note any warnings or objections you made
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Request the behavior stop
This makes the problem real and creates a foundation for later sanctions, if needed.
7. Know When to Suspend or Involve the Court
If misconduct is severe—like coaching, threats, or refusal to answer legitimate questions—you may have grounds to suspend the deposition and file a motion for protective order or sanctions. This is a last resort but sometimes necessary to protect the process and your client’s interests.
8. Follow Up in Writing
If something problematic happens during the deposition, consider sending a follow-up letter or email to opposing counsel (and possibly the court) summarizing the conduct and your objections. This reinforces the record and may help deter future issues.
Final Thoughts
Deposition misconduct erodes the fairness of litigation and wastes time and money. The good news? With preparation, professionalism, and a strong understanding of the rules, you can keep the process on track—even when opposing counsel pushes boundaries.
Staying firm but respectful, protecting the record, and knowing your rights as an attorney are your best tools for preventing misconduct and preserving the integrity of your case.