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Former federal clerk. Received many similar calls, which were almost always sent to the judge. Answer was almost was always answer the question and preserve any objections.
I’ve only done it once. OC was being combative (literally screaming) and instructing an expert witness not to answer questions. Judge ruled over the phone, instructing him to answer. OC was sanctioned and put in jail for similar histrionics during a hearing a few months later. Very satisfying.
Best practice is to mark it for a ruling and move on to the next question. If it’s important, call the judge if not let it go. At as long as u preserve your objection.
Yeah, this happens.
I think it happened once. The judge ruled, but was clearly unhappy to be doing so and made it clear we needed a much better reason to call back.
I’ve done it before and had it done, mainly NY state courts. The best ever was a court attorney that read the CPLR (our rules of Civ Pro) for depositions to us over the phone but then just continued reading the next section and then the next until my adversary just gave in, I think she would’ve kept reading until 5pm if one of us didn’t give up!
Also have done this in NY. All depends who you get: some judges will give you a ruling over the phone; others say preserve and follow up in writing. I haven’t had the pleasure of a court attorney reading the CPLR haha, but hey it’s effective in its own way!
Depends on the judge. Some are vehemently against ever getting sucked in and you call them at your peril (check part rules!) Others will listen to the dispute on speaker and then rule on the record. Once I had a judge call all the parties into a virtual hearing on MS Teams and had an instant hearing on the issue. So the tl;dr: depends on the judge and know going in to the EBT what they want.
Damn really? I’ve never had a judge rule.. usually the other side just keeps threatening “I am taking a break to call the judge” and comes back with tail tugged between their legs lol
Which jurisdiction(s) did you have judge ruled on the record
Exactly that. I have called a few times and the judge made a ruling on the phone
I’ve only had this happen once and we did have to call the judge and she had a mini hearing on the phone with each of us presenting our respective positions and then her issuing a ruling moments later
I’ve only had OC threaten to call the judge. One pulled out their phone and acted like he had the judge on speed dial. I called his bluff and told them go ahead and make the call but refused to go off record. Most of the time we’ll either talk during a break and reach a compromise or understanding. Other times they just make their objection, move on, and ultimately forget about it.
Coach
Check your local rules but on defense you generally you cannot end a deposition for what you deem objectionable questions (there’s no “this deposition is over!” theatrics like you seen on tv), your remedy is to call the judge and get an evidentiary ruling
I was at a conference recently where a panel included in their materials a transcript of this happening. Including the part where the judge for the case wasn't available so the duty judge was put on the line and made a ruling.
Which was kind of a good way to see how this tactic is done. It was a privilege issue and the judge ruled on behalf of the party asserting privilege. The defendant wanted to know when the plaintiff first called their lawyer, and plaintiffs counsel went to the mat for it.
I’ve been in a depo where the attorneys have called the judge or the special master assigned to the case in the middle.
Hi from Florida … based on my experience with state judges, I feel like they would throw a FIT if counsel ever called them over a depo dispute. I’ve had OC threaten to do it, and really hoped they would so I could see how it all goes down lol but hasn’t happened, yet. But the way our courts/judges are set up here… I just don’t see a judge even entertaining the call (let alone the JA answering the call 😆)
I’ve seen it done.
Had it come up a few times with questions whose answers would arguably have waived attorney-client privilege. In my limited experience, the Judges didn't mind because they understand the significance of the fork in the road we were at in the deposition.
When I was a law clerk I would tell them Judge was busy and to figure it out lol. Most of these issues are BS and let the attorneys move on with it.
I was on a dep three months ago where Pl’s counsel called the judge who actually joined our Zoom dep session and made a ruling. He instructed the witness to drive 45 minutes to her workplace to retrieve a document she mentioned but hadn’t “brought” with her in response to the subpoena.
I’ve never personally called the judge, but in several where either co-defendants or the plaintiff called the judge (on other defendants, never me). It NEVER goes well. The judge is annoyed at the petty squabbling and basically tells everyone to act like adults and professionals.
Also had judges called over deposition time limits. These are more annoying because the calls are being made by seasoned attorneys who know full well what the judge’s answer is going to be and call anyway. It does nothing to help their case.
Coach
It will vary quite heavily on the individual judge involved. In federal court the judge is more likely to answer and make a ruling and have a good bit of scorn for whoever they think is more wrong. Some high volume state courts - forget it. Not even worth bothering and they’ll probably just tell you to work it out or file a motion later or maybe not even answer.