The Mississippi Bar Introduces New Deposition Guidelines
In November of 2014, the Board of Commissioners of The Mississippi Bar adopted a comprehensive set of guidelines for the taking of depositions in Mississippi. These Deposition Guidelines are the product of two years of careful study by the Bar’s Professionalism Committee, and they are intended to “promote professionalism in depositions and provide attorneys with ample guidance to conduct a deposition in a professional manner.”1
The Bar’s Deposition Guidelines address the perceived decline of civility in the discovery process. In 2012, the Professionalism Committee began considering guidance for depositions after “frequent reports” to the General Counsel’s office of unprofessional attorney conduct during depositions. Many attorneys have heard anecdotal accounts of lawyers behaving badly in depositions, and some of you may have witnessed this bad behavior. Regrettably, this is consistent with a broader concern. Most recently, 47% of our colleagues in The Mississippi Bar agreed that professionalism among attorneys has decreased in the last five years, according to the Bar’s 2014 Economic Survey.2
If professionalism is truly on the decline, then it is logical to expect problems in the context of a deposition. A deposition provides a lawyer with the opportunity to impress a client, evaluate (or even intimidate) opposing counsel, and assess a witness. Opposing counsel face each other in a deposition outside the presence of a judge or some third party such as a mediator. The Professionalism Committee noted that for many lawyers, the deposition is the substitute for courtroom litigation because so many cases now end before trial. The adversarial context of the courtroom has migrated to the conference room, as deposition transcripts can attest.
The guidelines delineate between effective and excessive deposition strategy. They are not intended to limit the role of the attorney as advocate. Deposition questions should remain robust, adversarial, and even aggressive. According to Mississippi Bar President Roy Campbell, who spoke about the guidelines during the 2015 Annual Convention, the guidelines serve as a “gentle reminder” of the boundaries of permissible conduct in depositions.
The Deposition Guidelines consist of a general statement and eight itemized guidelines. The general statement provides that:
Depositions should be dignified, respectful proceedings for the discovery and preservation of evidence. To the extent possible, depositions should be conducted just as examinations of witnesses during trials or hearings. See F.R.Civ.P. 30(c)(1) (“The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.”).
This general introduction can be compared to Rule 3.02 of the Uniform Rules of Circuit and County Court Practice, which requires attorneys to treat witnesses and opposing counsel with respect and to refrain from annoying or harassing conduct during court proceedings.3 Similarly, Rule 1.01 of the Uniform Rules of Chancery Court admonishes counsel to be respectful and to avoid “bickering” or “wrangling” with opposing counsel or a witness.4 These requirements are incorporated into the general statement of the Deposition Guidelines. This introduction contains no radical changes to discovery practice; instead, the Bar offers another reminder on how lawyers are expected to behave. As Roy Campbell noted in his remarks at the Annual Convention, if lawyers would follow the letter and spirit of the general statement, few problems would arise from depositions.
Eight specific guidelines follow the introduction. The guidelines also cite to an article that provides detailed advice on preparing for and taking depositions. The guidelines may be found here: http://www.msbar.org/media/928317/deposition-guidelines.pdf
These eight guidelines memorialize what most lawyers would describe as professionalism in the discovery process. Yet, not everyone will agree with the Bar’s suggestions. In particular, we can expect discussion among lawyers over two subjects — objections and contact with non-client witnesses. The guidelines allow objections made for a “legitimate purpose,” such as to form. The guidelines do not permit suggestive objections, such as the often-used speaking objections “if the witness knows,” “if the witness remembers”, etcetera. As additional guidance on managing objections in depositions, the guidelines reference an article on federal practice from Practical Law The Journal/Litigation. This article lists proper objections to form, which presumably constitute legitimate objections under the guidelines: leading, argumentative, compound question, misleading, lack of foundation, speculative, vague, or calling for a legal conclusion.5 Other legitimate objections include objections as to competency, the manner in which the deposition was taken, and errors which could have been cured during the deposition; otherwise these objections are waived.6
Questions may also arise over the restriction against speaking with non-represented witnesses without court permission. Read broadly, this guideline would prevent an attorney from conferring with the employee or family member of a client, even though such communication would not violate the Mississippi Rules of Professional Conduct. These deviations from commonly-accepted deposition practice will cause some to question whether we are sacrificing zealous advocacy for the sake of civility.
The Bar’s Deposition Guidelines are a worthwhile endeavor. The guidelines aspire to decrease instances of unprofessional conduct during depositions. The guidelines do not mandate civility during depositions. However, the guidelines are consistent with the Uniform Circuit and Chancery Court Rules, the Rules of Civil Procedure and the on the Bar’s existing Guidelines for Professional Conduct, all of which include a professionalism requirement.7 So in reality, the Deposition Guidelines add another layer of instruction about how lawyers should behave. The majority of lawyers do not need more rules to know that we should treat our colleagues, clients, and witnesses with respect and dignity. Will the guidelines prompt a “lightbulb moment” for the lawyer who does not realize his or her conduct is unprofessional? Let us hope so. But not all unprofessional conduct arises from being unaware. Conference rooms will still play host to depositions where lawyers engage in uncivil conduct, whether for strategy or for sport. With the Bar’s Deposition Guidelines, we have received not just another reminder to mind our manners; we have been given practical guidance specific to the discovery process, through which we can resolve difficult situations and bring civility back to the discovery process.