Trial Magazine

Depositions are critical tools in our cases and central to the discovery process. But depositions unfortunately present many opportunities for the opposing party to obstruct discovery. The key is understanding how and why obstruction occurs—and structuring depositions and conducting yourself in a way to limit such behavior.

Civil and ethical rules intend to prevent obstructive behavior. Under the Federal Rules of Civil Procedure (FRCP), questioning witnesses at a deposition must be conducted as it would be done at trial.¹ Objections must be made in a nonargumentative and nonsuggestive manner.² And instructions not to answer may be made under extremely limited circumstances only: to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to terminate or limit the deposition.³

The Model Rules of Professional Conduct prohibit attorneys from unlawfully obstructing another party’s access to evidence or altering, destroying, or concealing a document or other material having potential evidentiary value.⁴ Similarly, attorneys must not falsify evidence, counsel or assist a witness to testify falsely, or offer certain inducements to witnesses.⁵ And during a deposition or other pretrial proceeding, it is improper to make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a proper discovery request by an opposing party.⁶

However, obstructive behavior by witnesses and counsel still regularly occurs at depositions. We must hold defendants accountable for this behavior through motions to compel discovery and to seek sanctions.⁷ These motions, when properly drafted and carried out, can help to change the incentive structure to make it more costly for opposing counsel to engage in obstructive behavior.

By approaching depositions less combatively, we can fulfill our ethical obligations, obtain more admissions, and face less obstruction.

Questioning Style

But before filing these motions with the court, you can take other steps to reduce the likelihood and effectiveness of obstructive behavior. Obstruction occurs most often when there is increased tension in the room. That tension can be heightened by the language or tone of the questioning attorney, the defending attorney, or the witness. As the questioning attorneys, we should do our part to lower the temperature. By approaching depositions less combatively, we can fulfill our ethical obligations, obtain more admissions, and face less obstruction.

Many researchers have examined the techniques police officers and other investigators use to question criminals, as discussed later. Clearly the interrogation of a suspect and the deposition of a defendant in a personal injury case differ, but there are also many similarities. In both settings, the person being questioned often does not want to cooperate with the person doing the questioning. And the interrogator and deposing attorney both want to obtain a confession, but they also can achieve their goals by finding inconsistencies in the suspect’s or deponent’s statements.

Hollywood versions of interrogations of alleged criminals often include examples of coercive behavior, but studies have shown that these tactics are both morally wrong and ineffective in obtaining truthful and accurate information.⁸ By looking at what has proven successful in the interrogation setting, we can organize our questioning of witnesses in a way that will lead to optimal results.

Studies have broken down interrogation styles into information-gathering or accusatorial.⁹ An information-gathering style involves direct, positive confrontation and uses open, exploratory questions to obtain information. “This model focuses on developing rapport, explaining the allegation and the seriousness of the offense, emphasizing the importance of honesty and truth gathering, and requesting the suspect’s version of events.”¹⁰ Questioning using this method allows deponents to explain themselves without interruption—only after being given the opportunity to fully explain themselves are they presented with any inconsistencies or contradictions.¹¹

An accusatorial style, by contrast, involves the questioner attempting to establish control, using psychological manipulation and closed or confirmatory questions with the aim of obtaining a confession. This questioning style is confrontational and guilt-presumptive.¹² “The strong belief in ‘guilt’ on the part of interrogators has been shown to lead to the use of longer interrogations that involve more psychologically manipulative tactics—ultimately leading to the elicitation of both true and false confessions that confirm the beliefs of the interrogator.”¹³

An information-gathering style is more in line with the legal and ethical obligations of a questioning attorney at a deposition—and is less likely to result in confrontation between the parties. But is it more effective?

Researchers who have studied information-gathering and accusatorial techniques for interrogation found that the more confrontational accusatorial techniques were less effective.¹⁴ They found that an “information-gathering approach yielded more critical details and resulted in a more talkative interviewee than an accusatorial interrogation strategy.”¹⁵ They also found that more admissions were elicited when interrogators used information-gathering strategies.¹⁶

Interestingly, the researchers found that the less confrontational techniques caused the individual to be less nervous and to perceive significantly less pressure from the interrogator.¹⁷ And a meta-analysis of studies examining methods of interrogation found that “when compared directly against accusatorial methods, information-gathering approaches showed superior diagnosticity by significantly increasing the elicitation of true confessions and significantly reducing the incidence of false confessions.”¹⁸

Building Rapport

Building rapport increases the likelihood of a successful deposition.¹⁹ So plan out your deposition in a way that allows you to build rapport with the witness.

Depo prep. First, consider how you approach deposition preparation. Instead of starting out with questions, start by drafting goals. I begin by writing out the statements that I hope to elicit from the witness. If everything goes perfectly, what statements or admissions will come out of the witness’s mouth? Instead of preparing an outline of questions for the witness, my list of goals includes statements that I want the witness to agree to (such as, “I wasn’t looking when I hit your client’s car.”). These goals will then become the framework for your deposition.

Then arrange your goals into an order that will allow you to maximize the likelihood of success. I often find it best to start the deposition with the things that the witness is likely to agree on. Tell the witness: “There are going to be a number of things that we may disagree on, but I want to start this deposition with some areas that we may agree about. This will shorten the deposition and allow us to focus on those disagreements.” Then I go through a list of “do you agree that” questions. The goal is to have a long list of “yes” answers.

By starting out with areas of common ground, you are communicating to the witness that you are reasonable. Much like the information-gathering method, this allows the questioning to begin with a less combative format rather than an attack. Starting out with areas of common ground does not mean that you must avoid raising controversial subjects with the witness. Instead, the goal is to save those topics until the second half of the deposition.

Behaviors. Specific verbal and nonverbal behaviors also can be used to gain rapport. For example, you might adopt immediacy behaviors such as leaning forward, orienting your body toward the witness, reducing the physical distance between yourself and the witness, and making eye contact.²⁰ Additionally, active listening using brief affirmative responses and paraphrasing what the witness has said are effective methods for building rapport.²¹

The nonverbal method that has been shown to have the highest predictor of rapport is termed “positivity,” which is really the emotional aspect of respect between the questioner and the witness.²² And nonverbal actions such as smiling, in addition to compliments and encouraging comments, are good predictors of a working alliance between the questioner and the witness.²³

One method of rapport-building well known to many lawyers is mirroring. This is when the questioner mirrors nonverbal behavior, speech rate, or linguistic patterns to establish coordination and positivity.²⁴ For example, as the questioning attorney in a deposition, you might copy the posture of the witness in a subtle way that sends a message to them that you are connecting. Many studies have shown that this technique improves trust in the negotiation setting.²⁵

Self-disclosure. Another interrogation tactic that can build rapport is self-disclosure. “Self-disclosures can help personalize the interaction, building a relationship between interviewer and source. In witness interviews, using self-disclosure to build rapport resulted in less inaccurate and misinformation being reported by the witness.”²⁶

While depositions are not an ideal opportunity for self-disclosure by the questioning attorney, there are times when it can occur appropriately. Review the witness’s resume or social media and look for something that you have in common with the witness. The similarities might be more meaningful, such as shared values, but even a shared birthday, academic major, or school can be helpful.²⁷ When introducing yourself before the start of the deposition or during small talk while on a break, use the opportunity for self-disclosure. This will help to disavow the witness from whatever opposing counsel shared about you during their prep session.

Too often, we fail to appreciate that defense lawyers have very different relationships with their clients than we do as plaintiff lawyers. We spend time and energy building a trusting relationship with our clients, but defense lawyers often do not have that luxury. When a defendant shows up to their deposition, they may not have spent more than an hour talking to their lawyer. This lack of familiarity presents an opportunity for you, as the questioning attorney, to build rapport and show the witness that you are the more reasonable attorney.

When facing obstruction by opposing counsel, use body language to communicate to the witness that the deposition is about you and them, not their obstructive lawyer.

When Obstruction Still Occurs

Despite your best efforts at building rapport, inevitably certain areas of inquiry will lead to obstructive behavior by the witness or defense counsel as they become nervous about where your questioning is leading. Obstruction by the witness often presents itself through evasive answers—they might refuse to answer a question or reiterate their talking points incessantly. Their goal is to get you to move onto another topic. Fight the urge and instead, calmly ask the question again or have the court reporter read back the question. To be able to bring a motion to compel later if you need to, the transcript must reflect appropriate conduct on your behalf.

Any lawyer who has taken a deposition has experienced obstructive behavior by defense counsel. Typically, this occurs using speaking objections that violate FRCP 30(c)(2). Defense counsel may say “you can answer if you know” or “I don’t want you to speculate”—or they may even actually testify for the witness. In dealing with this behavior, remain aware of your ethical obligations and remember your goal of building rapport with the witness. Use your body language to communicate to the witness that the deposition is about you and them, not their obstructive lawyer.

If the conduct persists, often the best step is to ask the witness to leave the room. State calmly on the record: “If defense counsel insists on making objections that are suggestive, I’m going to ask the witness to leave the room. Then counsel can make their objection. When they are done, we can invite the witness back in the room, and we can continue.” If opposing counsel objects to this measure, they are making it clear that their conduct is merely guided toward instructing the witness and not preserving an objection for the judge. Rarely will you have to take this step twice.

Less commonly, defense counsel will instruct their client not to answer. There are extremely limited situations in which an instruction not to answer is appropriate.²⁸ If such an instruction is given to the witness, ask all the questions in that line of inquiry that you want to ask the witness. Make your record so that the judge, when evaluating a motion to compel, can fully appreciate the scope and purpose of the questioning. If you are awarded another deposition to explore these questions, you do not want to be limited to the single question.

Deposition obstruction cannot be eliminated, but it can be limited and its effectiveness can be minimized by appreciating the factors that lead to its occurrence. Build rapport with witnesses, and create an environment in which defense counsel’s obstructive behavior will appear as an extreme contrast to your own professional behavior. Keep your composure, and always remember that a judge will one day read the transcript should a motion to compel become necessary.

Seth L. Cardeli is an attorney at Levin & Perconti in Chicago and Rockville, Md., and can be reached at slc@levinperconti.com.

Notes

1. Fed. R. Civ. P. 30(c)(1).
2. Fed. R. Civ. P. 30(c)(2).
3. Fed. R. Civ. P. 30(c)(2), 30(d)(3).
4. Model Rules of Pro. Conduct r. 3.4(a) (Am. Bar Ass’n 2020).
5. Model Rules of Pro. Conduct r. 3.4(b).
6. Model Rules of Pro. Conduct r. 3.4(d).
7. Fed. R. Civ. P. 37. See also Mark Kosieradzki, Deposition Obstruction: Breaking Through (2019) (details important steps that can be taken to hold opposing counsel and their client responsible for obstructive behavior).
8. For example, a December 2014 report of the Senate Select Committee on Intelligence on the Central Intelligence Agency’s Detention and Interrogation Program unequivocally found that coercive interrogations “‘do not produce intelligence,’ ‘will probably result in false answers,’ and had historically proven to be ineffective.” See S. Rep. No. 113-288, at 3 (2014).
9. Jacqueline R. Evans et al., Obtaining Guilty Knowledge in Human Intelligence Interrogations: Comparing Accusatorial and Information-gathering Approaches With a Novel Experimental Paradigm, 2 J. Applied Res. Memory & Cognition 83 (2013).
10. Christian A. Meissner et al., Accusatorial and Information-gathering Interrogation Methods and Their Effects on True and False Confessions: A Meta-analytic Review, 10 J. Experimental Crim. 459, 462 (2014).
11. Id. at 462–63.
12. Id. at 462.
13. Id.
14. Evans, supra note 9, at 83–88.
15. Id. at 87.
16. Id. at 86.
17. Id. at 86–87.
18. Meissner, supra note 10, at 481.
19. See Allison Abbe & Susan E. Brandon, Building and Maintaining Rapport in Investigative Interviews, 15 Police Prac. & Res. 207 (2013).
20. Id. at 209–10.
21. Id. at 210.
22. Id. at 209.
23. Carlton T. Duff & Robinder P. Bedi, Counsellor Behaviours That Predict Therapeutic Alliance: From the Client’s Perspective, 23 Counselling Psych. Q. 91 (2010).
24. See William W. Maddux, Elizabeth Mullen, & Adam D. Galinsky, Chameleons Bake Bigger Pies and Take Bigger Pieces: Strategic Behavioral Mimicry Facilitates Negotiation Outcomes, 44 J. Experimental Soc. Psych. 461 (2008); Kate G. Niederhoffer & James W. Pennebaker, Linguistic Style Matching in Social Interaction, 21 J. Language & Soc. Psych. 337 (2016); Lauren E. Scissors, Alastair J. Gill, & Darren Gergle, Linguistic Mimicry and Trust in Text-based CMC, Proc. of the 2008 Conf. on Computer Supported Collaborative Work (Nov. 8, 2008).
25. Maddux, supra.
26. Abbe & Brandon, supra note 19, at 211; see also Jonathan P. Vallano & Nadja Schreiber Compo, A Comfortable Witness Is a Good Witness: Rapport-building and Susceptibility to Misinformation in an Investigative Mock-crime Interview, 25 Applied Cognitive Psych. 960 (2011).
27. Abbe & Brandon, supra note 19, at 212; see also Michael J. Platow, Duncan Mills, & Dianne Morrison, The Effects of Social Context, Source Fairness, and Perceived Self-source Similarity on Social Influence: A Self-categorisation Analysis, 30 Eur. J. Soc. Psych. 69 (2000).
28. Fed. R. Civ. P. 30(c)(2), 30(d)(3).