Andrew Burger Jul. 12, 2016, 10:06am


HARRISBURG – A recent judicial opinion issued in the U.S. District Court for the Middle District of Pennsylvania reinforces precedent and emphasizes the need for attorneys to comply with rules governing the manner and extent to which they can guide and influence clients' deposition testimony.

In a memorandum opinion in Vnuk v. Berwick Hospital Co., U.S. Middle District of Pennsylvania Court Judge Robert D. Mariani wrote that depositions are generally to be conducted under the same rules governing client testimony during trials. In essence, that means that attorneys can only communicate with clients prior to their being sworn in at the start of deposition hearings.

The one exception allows attorneys and witnesses to confer during civil trial depositions only if the purpose of their communication is to decide on whether or not to assert privilege.

Mariani's opinion reinforces a precedent established in 1993 in Hall v. Clifton Precision, which was heard in the U.S. District Court for the Eastern District of Pennsylvania. In that decision, the court cited the same guiding considerations in strictly limiting attorneys' objections during depositions as they may influence clients' testimony one way or another. 

Mariani's opinion in Vnuk "reinforces the idea that a witness is by and large on their own once they are sworn into a deposition. The guiding principle here is that the main purpose of deposition hearings is to establish the facts and reveal the truth as believed by witnesses," Philadelphia-based Fisher Phillips Associate Benjamin C. Mann told the Pennsylvania Record.

As Mann summarized in a Fisher Phillips blog post, plaintiff's counsel transgressed federal rules and those established by Hall in Pennsylvania by: speaking with his client during multiple breaks including a 30-minute lunch break; during questioning, writing down information on a notepad and showing it to his client; 

during questioning, whispering to his client; and engaging in lengthy speaking objections in order to influence his client’s testimony.

When defense counsel questioned plaintiff regarding these communications with counsel, plaintiff’s attorney claimed privilege and instructed her not to respond.

Mariani's decision also emphasizes the importance of preparing witnesses in advance of deposition hearings commencing, Mann pointed out.

"Once they are sworn in, attorneys essentially have to sit back and allow testimony to come out as it comes out," he said.

On the other side of the table, attorneys questioning witnesses during depositions need to be aware of and recognize when the rules are being broken. As established in Hall and reinforced in Vnuk, tactics such as speaking with clients at any time during the day depositions are taken, showing them written notes while they're testifying, or interjecting by spoken objections during the course of a deposition violate the rules, he noted.

The salient point here is that any such tactics can "affect the truthfulness of clients' testimony and obstruct achieving the primary purpose of deposition hearings, which is to gather factual information from witnesses, not facts as perceived by attorneys…Once a witness comes into the deposition room and is sworn in they are under oath for the entire day – that includes lunch breaks or when they're in a rest room," he said.

Mann noted that in his experience, instances of attorneys transgressing these rules are few and far between.

"The first thing I say to witnesses in preparing them for depositions is tell the truth. I would never coach anyone to do otherwise...Essentially, you have to let the chips fall where they may," he said.

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U.S. District Court for the Middle District of Pennsylvania Harrisburg Division
228 Walnut Street
Harrisburg, PA 17101

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