Monday, July 29, 2019

Attorney gets reprimand for not trying to stop client's attempts to be evasive during deposition

Conventional wisdom states that lawyers should advise their clients (or other witnesses) to answer deposition questions "narrowly."  Yet, lawyers must be careful not to allow the witness to be too uncooperative.   In other words, lawyers have a duty to tell their clients to behave properly and to answer the questions.

Recently, the ABA Journal reported on a recent decision in Delaware which illustrates the point.  According to the story, the Delaware Supreme Court "called out" a Sullivan & Cromwell partner by name and said he apparently made no attempt to stop his client’s “flagrantly evasive, non-responsive and flippant answers.” According to the Court's opinion, a lawyer who represents a client who engages in deposition misbehavior “cannot simply be a spectator and do nothing."

This is a good decision with which I totally agree.  Lawyers need to know that the litigation process is not a game, and that the judicial system depends on lawyers playing by the rules.

When I was starting out as a lawyer many years ago, I took a deposition of an engineer in a products liability case.  All I was asked to do was to get the witness to describe the product's manufacturing process on the record.  I started the deposition by asking the witness what his name was.  As I recall, our dialogue went something like this:

Me:  "Can you tell us your name?"

Witness:  "Yes."

It went downhill from there; but after a while, his own lawyer realized the witness' games were causing everyone to waste their time.  The lawyer was not happy with his own witness and turned to the witness and told him to just answer the questions. 

According to the Supreme Court in Delaware, lawyers have a duty to do this.

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