Deposition Sanctions for Counsel and Witness Misconduct

Seeking and Defending Motions for Sanctions, Avoiding Misconduct

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Thursday, September 19, 2019

Recorded event now available

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Course Materials

This CLE course will guide trial lawyers through the dangerous area of deposition misconduct. Whether dealing with an evasive witness or an obstreperous lawyer, courts are not shying away from issuing costly sanctions orders. Deposing counsel must know what tools are available to keep defending counsel and the witness in line. Defending counsel is placed between the Scylla and Charybdis of not coaching the witness and failing to control a witness.

Description

Under Fed. R. Civ. P. 37(a) and (b) (and their state law equivalents), if a party fails to answer a deposition question, or provides an evasive or incomplete answer, that party can be ordered to answer and sanctioned for not doing so. This exposure to sanctions has been extended to attorneys as well. Thus, trial counsel must take steps to ensure such testimonial issues do not arise.

Courts have focused on three items in awarding sanctions: the conduct of the witness in answering (or not answering) the questions; the making of needless and "coaching" objections by counsel; and conversations between counsel and client held during breaks regarding testimony. Questioning counsel should know how to make a record of these actions to successfully bring them to the court's attention.

On the other hand, sometimes what seem to be evasive answers and needless objections are brought about by the actions of the questioning attorney. Defending counsel should also know how and what record to make in such instances, and how to best oppose sanctions motions.

Listen as this panel of seasoned trial attorneys reviews the rules governing deposition conduct for counsel and client alike. Learn appropriate steps for seeking and defending against monetary sanctions. Perhaps most importantly, come away from the webinar with the knowledge of how to avoid and prevent sanctionable behavior in the first place.

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Outline

  1. Sanctionable conduct during a deposition
    1. Witness answer issues
    2. Counsel objection issues
  2. Making a record during the deposition
    1. What is (and is not) proper colloquy
    2. Memorializing compromise suggestions
    3. Video as behavior control
  3. Discovery motion practice
    1. Order to compel
    2. Sanctions orders
    3. Limitations on sanctions to compensation
    4. Applicability of sanctions to counsel
  4. Witness preparation to avoid problems in depositions

Benefits

This panel will review these and other relevant matters:

  • General principles concerning deposition conduct
  • Improper activity during a deposition
  • Making a record during the deposition
  • Motion practice
  • Witness preparation to avoid sanctionable conduct

Faculty

Clair, Alanna
Alanna Clair
Partner
Dentons

Ms. Clair's practice focuses on professional liability and law firm defense, insurance coverage and bad faith...  |  Read More

Gordon, Michael
Michael R. Gordon
Founder and Partner
GordonLaw

Mr. Gordon focuses on complex commercial litigation. He has substantial experience trying cases in state and federal...  |  Read More

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