What I am about to tell you sounds like I am making up this story, but this really happened. There is a lawsuit pending in federal court in Key West, Fla. A deposition was being taken in the case, and the lawyer representing the plaintiff could not attend in person, so he sent his paralegal to the deposition to hand documents to the witness, and the lawyer took the deposition by telephone. This is perfectly permissible and actually makes sense in certain limited circumstances.
During the course of the deposition, the paralegal noticed that the witness and the lawyer were sitting very close together and she looked down beneath the conference room table and noticed during the questioning that the lawyer and the witness were playing footsie; during certain questions, the lawyer would tap the witness’s foot. The paralegal took a picture of the footsie behavior and sent it to her boss through a text message. The lawyer asking the questions started asking the witness if the lawyer was tapping her foot with his foot and she admitted he was.
The lawyer doing the tapping and the witness tried to explain it away, but the questioning lawyer terminated the deposition and filed a motion with the court seeking sanctions for the footsie behavior of the lawyer and the witness.
The motion is pending.
This practice is called “coaching” the witness, and the lawyer playing footsie has taken “coaching” to a new level. It is forbidden behavior. I have been practicing law for over 30 years now and on occasion I have been involved in depositions in which my opponent is “coaching” a witness. This means that the attorney, through an objection, is making suggestions to the witness as to what to say under oath.
I can’t say that I have never done it, but I can honestly say that I have never done it with the intent of trying to change the witness’ testimony. Some lawyers are notorious for doing it, and I have always found that the best way to stop it is to threaten to terminate the deposition and ask the judge to appoint a special master to attend the deposition so that the lawyer on the opposing side behaves. Usually, just a gentle reminder to quit coaching makes the lawyer stop.
Coaching may also be unethical behavior. I have been in many situations in which I would like to coach a witness, or alternatively crawl under the table and quietly sneak out of the deposition on my hands and knees because the witness, usually my client, is doing so poorly. We spend considerable time preparing our clients for deposition by letting them know the issues and teaching them how to answer questions.
Of course, we never tell the client what to say and we always begin every conversation by announcing that we want them to tell the truth, no matter how damaging the truth may be to his or her case.
I usually caution the client to always be brief and complete in the answer given. Never provide more information than the question asks and listen carefully to the question asked. I always tell the story about a client who was giving a deposition and the lawyer announced that he was just about finished with the deposition. We took a quick break while he scanned his notes and I again cautioned the client to listen carefully to the question and only answer the question asked. We reconvened the deposition and she not only failed to answer the question asked, but she answered a question he did not ask, which opened the door to two more hours of testimony.
On one occasion, the client told a completely different story under oath than she told me during multiple meetings in my office. The facts she told me from the beginning formed the basis for the lawsuit. After she testified under oath as she did, she essentially destroyed her case. The case was dismissed upon my recommendation. Had I engaged in a little foot tapping with the client, perhaps her testimony would have changed. Yet, that would be unethical and improper and so I refrained from engaging in such behavior.
A lawyer may make a legal objection in the course of a deposition. The deposition is obviously not ruled upon during the deposition because no judge is present to decide the validity of the objection. The law is very clear that if an objection is made, it needs to clearly and fully state the basis for the objection. Sometimes, this objection can sound very much like a “speaking objection,” which is one that could be considered coaching the witness.
For example, a question may assume certain facts in the question, which are not true or which are misleading. It is not sufficient to merely object because the question is misleading or wrongly assumes facts, but the lawyer must offer the facts that are misleading or wrongly assumed. Some lawyer might consider that “coaching” the witness, but clearly it is not.
However, the rules and law of evidence have no provision for footsie. After what happened in Key West recently, I will have to start keeping an eye on the witness’ feet, especially if the lawyer and the witness are sitting close together. There have been times when I wish the witness had some kind of shock collar on that I could activate it when the witness is not doing well. A little minor electrical shock might just keep the witness in line.
However, I think I will just stick to my old way of doing things, because I am not a very good cheater.
