- Quickdraw McLaw
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The ABA Journal has a story about a Florida attorney was suspended for 91 days for texting advice to a witness during a deposition and then failing to come clean about it when confronted by opposing counsel and a judge. Have you ever encountered a situation like this? How would you deal with it? What are your favorite techniques for making sure you witness is fully prepared? Any advice you would offer to someone taking their first deposition? Anything you would add to or subtract from this Illinois standing order regarding depositions that you think everyone should follow?
I would say that attorneys should start by reading Coyote Springs and actually understanding what it says. I have had a number of attorneys claim that under this case all discussions during any break are not privileged. I don't know how they get there from this language:
"We hold that attorneys may confer with witnesses during requested recesses in depositions only to determine whether to assert a privilege. For the attorney-client privilege to apply to these conferences, however, counsel must state on the deposition record (1) the fact that a conference took place, (2) the subject of the conference, and (3) the result of the conference. In the instant case, we conclude that the communications between the witness and plaintiffs counsel during the break in the witness's deposition are discoverable because plaintiffs counsel requested the recess in the deposition and failed to make a sufficient, contemporaneous record of the privileged communications."
The case is very clear that it is talking about breaks requested by the witness or their attorney.
The Coyote Springs decisions seemed to me to take the same concept as a privilege log for responding to discovery and requiring the same at a deposition if a privileged discussion took place. That's how I've described it to others in the past.
The Coyote Springs case is a great tool to have at your disposal. In general, the more deposition rules/opinions you know the better. More than other place, it's where issues of the law come up and you have to argue it on the spot or at least voice your objection and strategically create a record that meets the requirements to get what you want. I had an attorney that, post Coyote Springs, requested a break during some rough questioning for the witness. When they came back, the first thing I asked was what they talked about. OC objected, but clearly wasn't familiar with the case.
10:35 if the discussion occurs during a break requested by the person being deposed or their attorney. I have even had judges during trial announce before each break whether this was a "requested" or "unrequested" break so that the parties new whether what they discussed was privileged or not based upon the finding of this case.
Has this happen in a case with Reid and Rubenstein. Not cool at all.
@11:48a – same here. The judge took extra care to request whether both sides wanted to break for 15 mins, making sure to tally their responses on the record before breaking.
Don't lie. And especially don't lie to a judge. They don't like it.
And ESPECIALLY don't throw a client/former client of your BigLaw Firm under the bus when you do it. Looking at you, Littler.
Order.
Correction. Don't get caught lying to a judge. Don't ever get caught.
years ago I caught an attorney coaching the witness during a video deposition. i think she didn't know that the microphone was picking up everything. that attorney is now a sitting judge.
Juicy. Can you spill? Or at least give us a hint, like what her name rhymes with?
Not nearly as egregious, but I had a deponent conspicuously write on a post-it note, fold it, and pass it to the attorney to his left mid-question. The attorney then opened it within my line of sight, wrote a response, and slid it back to the deponent. I had to awkwardly ask whether we needed to have a discussion on the record about how that's inappropriate, and had the witness read the exchange to the reporter. It was just so weird and brazen, even thought the substance of the exchange was pretty innocuous. Some people have awful judgment….
I haven't had any real issues with Coyote Springs either way, tbh. I have noticed a lot of attorneys think Coyote Springs means that any communication on any break isn't privileged, and that's obviously not true. Whenever I prep clients for depositions, I always act as though it's true though. I tell them to assume our communications on break are not privileged. Funny story. One time, an attorney insisted on asking what client and I talked about. I told the client to answer. "Well, at lunch my lawyer said he thinks you're doing a terrible job because you aren't prepared and your questions are muddled." I just looked at opposing counsel and said, "I'm sorry you had to hear that, it wasn't intended for your ears." Hilarious.
Anyway, if opposing counsel is the one to say, "Hey, let's take a lunch break," does that trigger Coyote Springs? Because, if so, I can see carrying on the deposition until opposing counsel forces a lunch break as a pretty effective strategy. Thoughts?
Who in the hell is in charge at the Animal Foundation? Animals being abused and dying due to animal abuse???? Where are the county commissioners? Sick.
Yeah my gf just called me and said it was on Channel 13 nightly news. Apparently the story is still on their website as well.