Every year, the amount of cases that proceed to trial continues to decrease. This shift has placed enormous pressure on the discovery process, which creates an opportunity for obstruction. From bad faith objections to witness coaching, these tactics can delay proceedings and increase litigation costs for both parties.
In this article, we’re going to provide you with some tips and guidance to help you complete your next deposition, even in the face of uncooperative opposing counsel. Let’s get started!
Consider the Potential Motivators
There are a variety of different motivators that lead to bad, uncooperative behavior in attorneys. While it’s frustrating to imagine yourself in their shoes, doing so can provide valuable insight into their goals and view of the case. For example, some attorneys behave badly because their clients expect them to frustrate the opposing party. While this is no excuse for their conduct, it speaks volumes about the relationship between attorney and client. On the other hand, some attorneys refuse to cooperate because they think it will force you into early settlement negotiations and position them for a favorable outcome.
Review Rulings on Attorney Behavior
Over the course of your legal career, you’re nearly guaranteed to encounter at least one uncooperative attorney. In fact, the issue is so widespread that it’s even been litigated in extreme cases. For example, let’s look at the case of Security National Bank of Sioux City v. Abbott Laboratories. ¹
Here, defense counsel had violated the Federal Rules of Civil Procedure and substantially frustrated the discovery process. The court noted that the attorney repeatedly made unnecessary and excessive objections, coached the witness by making speaking objections, and frequently interrupted opposing counsel. He was sanctioned sua sponte for his actions. Ultimately, the judge determined sanctions “were justified and necessary to change counsel’s obstructive deposition practices and deter others who might be inclined to comport themselves similarly.”
Evaluate Your Circumstances
When you’re faced with seemingly minor issues, like interruptions or a baseless objection – it’s important to address them as soon as possible. Opposing counsel may seek to control or limit discovery by objecting to legitimate requests, delaying the production of relevant evidence, and generally being uncooperative. Your response to the bad behavior will set the precedent for the remainder of the deposition. In some cases, sanctions may be appropriate.
Short of requesting sanctions or relief from the court, it can be difficult to address obstructive behavior directly. In circumstances where the direct approach is not appropriate, remember that courts do not look favorably upon attempts to frustrate discovery. While you may not have an immediate recourse, the transcripts from the proceedings will reflect the opposing counsel’s unprofessional behavior and poor advocacy.
Thanks for reading! We hope we’ve been able to offer some useful tricks that you can use next time you’re seated across from an uncooperative opposing counsel. If you enjoyed this article, feel free to share it on social media.
When you plan your next deposition, don’t forget to take advantage of our plentiful deposition tools, including remote court reporting, concierge remote exhibit management, remote videography, and full-time tech support for your remote depositions, arbitrations, court hearings, trials, and other proceedings.
¹ Security National Bank of Sioux City, Iowa v. Abbott Laboratories, Civ. No. 11-4017, Doc. No. 205 (N.D. Iowa Jul. 28, 2014)