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At some point, there’s nothing you can do if opposing counsel is going to just lie. Unless you can prove the lie.
But you don’t necessarily need to take a break when being asked for a break, although I wouldn’t be too adversarial and instead say “I have just a couple more questions on this point that I’d like to close out before we move on to another topic, can you sit for another few questions?”
Build the record while on the record in depo. Ask deponent whether the conferred with counsel. I only practice in federal court, but depositions must be conducted in the same manner as in court testimony and witnesses cannot be coached.
There may also be caselaw in your state regarding the scope of privilege and whether communications during depos are privileged if during examination. Worth figuring out and pushing on, perhaps getting an instruction not to answer that you can fight about in court.
I love this blog but have never seen this post before. Thanks for sharing!
“I don’t know, can we take a break?”
Mentor
I never fight anyone when they ask for a break and nobody has ever refused when i asked for one.
Usually I ask if it’s an emergency or if it can wait until my line of questioning is complete
One time I was taking a depo for a colleague (not my case) via phone and I got an admission that went a long way towards securing summary judgment. They almost immediately took a break and when we got back the deponent just volunteered a correction that was the functional equivalent of saying the light was red after originally testifying it was green.
I asked the witness why they changed the answer and that drew out the privilege objection, but I shot back that if they were given instruction on the substance of the testimony, that's not privileged. Witness told me the lawyer told him to change his answer.
Not sure what happened with that in the end because it wasn't my case, but I still can't believe the lawyer let them answer with minimal pushback. Also really struck by how directly some lawyers will coach a witness's testimony
This just blows my mind. These are really clear lines for me. I don’t know why it’s shocking that other lawyers don’t give a shit but man, it’s very disappointing that this happens. No ethics. No regard for their license. Just wow.
I’ve done “I only have a few more questions until I get to a good stopping point—can we get through those?”
Ummm, you do nothing and take the break. I’ve taken/defended well over 100 deps and never refused a break or had someone refuse to allow me one. I’ve had people do the “almost done” stuff, which is fine, if they’re actually almost done. If you tell me you’re almost done and then ask more than three questions, we are taking a break. This is a petty hill to die on and it’s not going to look good for you if you try.
Coach
Saying you only have a few more questions you’d like to finish on that point first and asking if they can wait a minute or two is the best response. I’ve also seen attorneys put the concern on the record after the witness comes back from break: “Now that you’ve had the chance to talk to your attorney, did you want to change your testimony?”
At the very least, ask the witness to answer the pending question before going on a break.
I always add this as an instruction at the beginning of depos — taking a break is not a problem, but make sure you answer the pending question.
I always wait until the end of the deposition and then ask “ok there have been a lot of breaks today and a lunch break. . .” then ask the set up questions and ask what they talked to their lawyer about. It draws objections. But our local federal rules prohibit lawyer discussions during breaks.
I guess you could put a statement on the record if you really thought something shady was happening but more often than not I think you'd just be unnecessarily antagonizing your adversary and alienating the witness maybe even causing them to clam up.
Mentor
What you do is say ok we can break, and then ask them if they understood your questions, gave accurate answers, and then ask them if they want to add or change anything. That way the record is there to impeach them if they try to fix their testimony
If opposing counsel asks for a break, we take a break.