Objection! I’m Out of Post-It Notes . . .

I’ve been embroiled in a multi-week deposition bonanza in a religious discrimination case.  Yesterday, though, I experienced a first.  We were deposing the plaintiff.  Her lawyer is very seasoned.  While my co-counsel was conducting the examination, I was astonished to see what looked like plaintiff’s counsel passing subtly passing his client a small, square post-it note with writing on it.  I watched a little longer and, lo and behold, the plaintiff, while trying to respond to a question, looked down and read the note!

I called him on it.  To my amazement, plaintiff’s lawyer became indignant.  “I will counsel my client in any way I see fit,” he announced.  “Really,” I said.  “Well, don’t pass notes while questions are pending.”  A half hour later I saw him do it again.  Again, I called him on it.  This time he became even more indignant.

I suppose I should do some research to find out if coaching one’s client in deposition by means of written notes could somehow be an approved method of advocacy.  If it’s not prohibited, it certainly should be.  Who knows what he was writing to her.  It was probably just something innocuous, like “slow down” or “just say yes or no.”  On the other hand, it could have been substantive information, substituting the lawyer’s own memory for that of the witness.

Either way, depositions are not three-way conversations.  They are question and answer sessions designed to uncover facts.  I know there are all kinds of competing views on how involved the lawyer representing the witness should be in influencing the testimony, and I’m not above making speaking objections if I feel it’s necessary to protect my client.  I’ll also “remind” my client that certain questions ask only for yes or no, or point out that he or she has answered the question.  But I draw the line at passing notes back and forth during examination, even if only because it creates an appearance that something shady is afoot.

Like I said, my opponent is a very seasoned employment lawyer.  He’s brought his young protege associate along with him to every deposition.  I wonder if the protege is going to think it’s ok to pass notes to a deponent.  Or if he’ll just assume all defense lawyers are jackasses because I called out his boss on something I think is unethical.  My hope is that the young lawyer will think for himself, and decide for himself whether it’s ok to influence evidence gathering this way.  Mentors are important and valuable, but not if they carelessly pass on bad habits to impressionable young lawyers who represent the future of our profession.


  1. Anonymous

    How about considering that you can ask the deponent if he has reviewed and documents in order to answer the question? If so, lets see it. How about coaching of witnesses is prohibited? How about noting on the record something like: The record will reflect that counsel is passing the deponent a note?

    • We did both. Counsel refused to let us see the note. The record is pretty clear on what happened. If we have to go before the judge on other issues (likely) we’ll certainly point it out.

  2. Hey, Alex. I would do what you did: ask for the note, attach it as an exhibit, if he refuses, ask what the note(s) said, ask how many he had received during the depo, ask if any advised him how to answer, ask him to keep all notes if he refuses to hand them over, and move to compel and for costs immediately.

  3. In many jurisdictions, a lawyer may not confer with a witness during a deposition — even at breaks. See the case note: In Hall v. Clifton Precision. In 1993, Judge Robert S. Gawthrop III of the U.S. District Court for the Eastern District of Pennsylvania decided what would become the seminal case for the prohibition of lawyers conferring with witnesses during depositions. (In fact, numerous judges from the Eastern District of Pennsylvania and other jurisdictions have expressly adopted the Hall guidelines.)

    According to the opinion in Hall, an attorney insisted on privately reviewing a document with the deponent before he answered any questions as to its substance. This was deemed improper. Recognizing the obvious corollaries between depositions and live testimony, Gawthrop further opined, in dicta, that a witness and his or her lawyer are not permitted to “confer at their pleasure” during a civil trial, and that, “once a witness has been prepared and has taken the stand, that witness is on his or her own.”

    If this rule applies, it answers your question.


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