Washington Lawyer July/August 2026
By Kieran Murphy
Depositions are the factual battle-ground where the vast majority of litigation actually takes place," wrote Judge Robert Gawthrop III of the U.S. District Court for the Eastern District of Pennsylvania in 1993.
Unfortunately, many practitioners focus on the "battleground" aspect of this concept and see depositions as a no-holds-barred arena for obstructionism, evasion, and control of a narrative. A discovery tool meant for truth-seeking often devolves into a sideshow of posturing and witness coaching. At least in trial, there is a judge ruling on objections, calling balls and strikes and maintaining some semblance of decorum over the proceeding.
But in a deposition, some lawyers "forget that even though the deposition may be taking place far from a real courtroom, with no black-robed overseer peering down upon them … [they] are operating as officers of [the court]," Judge Gawthrop wrote in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). When faced with improper behavior from opposing counsel, many feel the need to meet such obstructionism in kind — to fight fire with fire. Others may shrink under the anxiety of more seasoned or more overbearing opposing attorneys belittling them during their questioning.
Neither route is necessary. The rule of law has vanquished kings, despots, and oligarchs the world over — it can do the same to a Rambo lawyer. For those who prefer the "battleground" mindset, think of the law as the rules of engagement — and as with any good battle preparation, "planning is everything," in the words of President Dwight Eisenhower.
The two-headed monster of deposition obstructionism — suggestive objections and comments on the record, and witness coaching during breaks off the record — can be defeated with proper preparation and a full understanding of the rules of engagement.
Understanding the Purpose of a Deposition
The oral deposition, as we know it today, is less than 100 years old, but the written deposition has existed in Anglo-American jurisprudence for centuries. The officer of the court posed the written interrogatories to the deponent under oath — without the parties present — and summarized rather than transcribed verbatim the sworn responses, according to Stanford Law School Professor Amalia D. Kessler.
In fact, Kessler wrote that early jurists saw the role of the deposition to be inquisitorial — to preserve evidence for later use at trial. The preservationist role of the deposition was taken so seriously that once a witness was deposed before trial, they were then prohibited from testifying at trial, out of fear that one of the parties might try to modify or craft their testimony for the lawyer's own gain, and thereby suborn perjury from the witness. Slow changes over time led to the watershed adoption of the Federal Rules of Civil Procedure in 1938 and the birth of the modern oral deposition taken by opposing counsel.
Despite changes to deposition procedure in 1938, its purposes remained the same, according to Hall:
- To elicit the facts of a case before trial;
- To help even the playing field by allowing all parties access to the same information, thereby tending to prevent trial by surprise; and
- To memorialize, or freeze, a witness's testimony at an early stage of the proceedings, before that witness's recollection of the events at issue either has faded or has been altered by intervening events, other discovery, or the helpful suggestions of lawyers.
The Hall decision notes that the purpose of a deposition is to find out what a witness saw, heard, or did — in other words, what the witness thinks. A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. Judge Gawthrop wrote, "When a deposition becomes something other than that because of the strategic interruptions, suggestions, statements, and arguments of counsel, it not only becomes unnecessarily long, but it ceases to serve the purpose of the Federal Rules of Civil Procedure: to find and fix the truth."
When faced with a colleague who has forgotten that purpose, remain calm and confident. The rules and the law are on your side.
Dealing With Obstructionism on the Record
Federal Rule of Civil Procedure 30(c)(2) states that "[a]n objection must be stated concisely in a nonargumentative and nonsuggestive manner.
A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)." The Notes of the Advisory Committee on the Rule confirm this: "In general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer. The making of an excessive number of objections may itself constitute sanctionable conduct."
Despite this authority, many lawyers take on the role of a coach when defending the depositions of their clients and witnesses. However, the Hall decision states:
The Federal Rules of Evidence contain no provision allowing lawyers to interrupt the trial testimony of a witness to make a statement. Such behavior should likewise be prohibited at depositions, since it tends to obstruct the taking of the witness's testimony. It should go without saying that lawyers are strictly prohibited from making any comments, either on or off the record, which might suggest or limit a witness's answer to an unobjectionable question.
Hall further indicates that creative lawyering has no place on the record in a deposition:
There is no proper need for the witness's own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers … As an advocate, the lawyer is free to frame those facts in a manner favorable to the client, and also to make favorable and creative arguments of law. But the lawyer is not entitled to be creative with the facts. Rather, a lawyer must accept the facts as they develop.
While defending counsel has the right to object and redirect the witness after the deposing counsel is finished, it is only necessary to object at a deposition where the "form" of the question (not the nature of the question) is objectionable and a "seasonable" objection would provide an opportunity to correct the form. In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 618 (D. Nev. 1998), offers examples of questions whose form might be corrected at the time of the deposition, including those that (1) are leading or suggestive, (2) are ambiguous or uncertain, (3) are compound, (4) assume facts not in evidence, (5) call for speculation or conjecture, or (6) are argumentative.
If irrelevant questions are asked, the proper procedure is for the lawyer to allow the witness to answer the questions, noting them for resolution at a pretrial hearing pursuant to Federal Rule of Evidence 104(a) or at trial. When there are objectionable questions during a deposition, "the examination shall proceed, with the testimony being taken subject to the objections … A party may object to an irrelevant line of question, but instructing a witness not to answer a question because it calls for inadmissible facts is sanctionable," as held in In re Stratosphere.
Counsel should also avoid engaging in so-called Rambo tactics where counsel attacks or objects to every question posed, thus interfering with, or even preventing, the elicitation of any meaningful testimony and disrupting the orderly flow of the deposition. In re Stratosphere further indicates that the irrelevancy of a question is not grounds to instruct a witness not to answer said question — unless and until the nature of the questioning makes it obvious that it is necessary to stop the deposition and seek relief under Rule 30(d)(3) for being conducted in a manner evidencing bad faith, or to embarrass, annoy, or oppress the deponent.
When faced with any of these myriad forms of obstructionism on the record, a helpful line usually quells opposing counsel's inner Rambo — "Please refrain from making suggestive comments in front of the witness." The overwhelming majority of the time, opposing counsel will recognize their bad behavior, will likely say something briefly to save face, and will then refrain from making further objections. Using this phrase is also helpful for the infrequent occasions where opposing counsel's objectionable on-the-record coaching and suggestions continue.
When you need to bring a motion under Rule 30(d)(2), tally up the number of suggestive comments in quick fashion to lay out numerically for the trial judge tasked with addressing this dispute. Including the relevant rules and cases cited previously will give the trial judge the law and the facts to rein in opposing counsel's obstructionist conduct.
Handling Conferences During Deposition Breaks
The phrase "horse-shedding the witness," or "woodshedding the witness," is said to have been coined by James Fenimore Cooper. In Cooper's time, attorneys lingered in carriage sheds near the courthouse to rehearse witnesses before their testimony.
The practice of explaining the testimonial process to and preparing a witness for their testimony before they are sworn in is commonplace and generally accepted practice. However, "once a witness has been prepared and has taken the stand, that witness is on his or her own … The same is true at a deposition," as stated in Hall. The decision continues: "Under Rule 30(c), depositions generally are to be conducted under the same testimonial rules as are trials. During a civil trial, a witness and his or her lawyer are not permitted to confer at their pleasure during the witness's testimony."
Despite a prohibition against "woodshedding," another frequently encountered difficulty at deposition is the attorney–client conversation during breaks. The permissibility and discoverability of such conversations is nuanced — the defending counsel does so at their (and their client's) own risk.
Once a deposition has begun, the preparation period is over and the deposing lawyer is entitled to pursue the chosen line of inquiry without interjection by the witness's counsel. These rules, as stated in Hall, also apply during recesses, including to conferences initiated by the witness, as opposed to the witness's lawyer — "There is simply no qualitative distinction between private conferences initiated by a lawyer and those initiated by a witness. Neither should occur."
The same reasoning applies to conferences about documents shown to the witness during the deposition. When the deposing attorney presents a document to a witness at a deposition, that attorney is entitled to have the witness, and the witness alone, answer questions about the document. However, Hall states, "a private conference between witness and attorney is permissible if the purpose of the conference is to decide whether to assert a privilege." Any conferences that occur "are a proper subject for inquiry by deposing counsel to ascertain whether there has been any witness-coaching and, if so, what."
Not all courts agree on this latter point, however. For example, the U.S. District Court for the District of Columbia held in Odone v. Croda International PLC, 170 F.R.D. 66 (D.D.C. 1997), that "a civil litigant has a constitutional right to retain hired counsel" and that "prohibiting a litigant from consulting with his attorney during breaks and recesses in the litigant's testimony impinges upon that right." The U.S. District Court for the District of Nevada noted in In re Stratosphere that what "the Federal Rules of Procedure seek to prevent is coaching the witness by telling the witness what to say or how to answer a specific question." But "[c]onsultation between lawyers and clients cannot be neatly divided into discussions about 'testimony' and those about 'other' matters," wrote the D.C. Circuit Court in Mudd v. United States, 798 F.2d 1509 (D.C. Cir. 1986).
In general, a deponent and the deponent's attorney have no absolute right to confer during a deposition in a civil proceeding, except for the purpose of determining whether a privilege shall be asserted. This general prohibition may extend to communications occurring during breaks, lunch, or even overnight, if a deposition lasts longer than a day.
"However, there is by no means a categorical prohibition on communications once a deposition has commenced," as stated in United States v. Philip Morris Inc., 212 F.R.D. 418, at 420 (D.D.C. 2002). While such prohibitions are appropriate during the actual deposition if there is no temporal interruption and the deposition is continued on a day-to-day basis with no intervening passage of time, it is generally inappropriate to impose an absolute prohibition on communications between counsel and a witness when depositions of that witness cannot be held on consecutive days.
The law is clear — a deposition break is not an opportunity to suggest answers, "woodshed the witness," or otherwise discuss the substance of testimony with the witness. However, communications between counsel and the witness to determine the applicability of a privilege, as well as communications between a deponent-client and their counsel when there are extended day breaks during the deposition, are permissible. Any other communication between the deponent and counsel during breaks is open to potential discovery and potential sanctions. Attorneys should not shy away from making their record when witness testimony changes after a break and from asking questions about the substance of off-the-record conversations.
Remembering the Role of the Lawyer in Discovery
Deposition obstructionism may be one of the most common forms of discovery misconduct, which is understandable given the importance of fact-finding in depositions. But lawyers owe duties not only to their clients, but also to their opposing counsel, the court, and the procedures and institutions they have sworn to uphold. Remembering that role serves the purpose of depositions and our civil justice system more broadly.
To quote from "Professional Responsibility: A Statement" from the ABA Joint Conference on Professional Responsibility in 1958:
The lawyer's highest loyalty is at the same time the most tangible. It is loyalty that runs, not to persons, but to procedures and institutions. The lawyer's role imposes on him a trusteeship for the integrity of those fundamental processes of government and self-government upon which the successful functioning of our society depends.
Kieran Murphy is a partner at Bertram & Murphy. His practice focuses on representing victims of birth injuries, neonatal injuries, and catastrophic medical malpractice. In April he co-presented the D.C. Bar CLE class "Depositions That Work: Advanced Strategies 2026."
