Episode 38 - Can More than One Lawyer for A Party Question the Deponent?

Episode #38

in a conversation with other lawyers recently, Jim Garrity was asked whether more than one lawyer for a party can question the witness in a deposition. This episode addresses that topic, explains how courts view it, and offers practical suggestions, as always, if you face or wish to use this strategy. The show notes contain eight reported decisions that will help get you started if you need to conduct research for one of your cases.

Please take a moment and leave us a five-star review wherever you get your podcast. These episodes take considerable time and resources to research and produce. The staff is thrilled every time they see a new five-star rating, so it's a great and fast way for you to show your appreciation for their work. Thank you.

CASES

Bryson v. Button Gwinnett Savings Bank 423 S.E. 2d 691 (Ct. App. Ga. 1992) (plaintiffs complained that trial judge erred in allowing two of defendant bank’s attorneys to question a single witness; held, any error in allowing two attorneys to question witness was harmless, saying “Although we can envision situations in which such “double-teaming” would constitute harmful error, we are not persuaded by. . .the circumstances of this case that it was necessarily error to permit two attorneys to question the same witness”).

In re Cummins, 144 B.R. 426 (U.S. Bktcy Ct W.D. Ark. 1992) (plaintiff sought protective order forbidding more than one attorney for defendant to examine him at deposition; held, “The court agrees that examination by multiple attorneys represent in one party may be oppressive,” citing FRE 611(a) generally but no specific rule that otherwise forbids it)

Caplan v. Fellheimer Eichen Braverman & Kaskey, 161 F.R.D. 32 (E.D. Pa. 1995) (nonparty witness moved for order preventing different lawyer from questioning her when deposition resumed on the second day; held, while local rule limited examination or cross-examination of a witness to only one attorney for a party, unless otherwise permitted by the court, there was no reason to prevent a more senior lawyer from resuming the deposition first commenced by a junior lawyer with the same firm)

Applied Telematics, Inc. v. Sprint Corporation, 1995 WL 79237 (E.D. Penn. 1995) (defendant’s motion for protective order, seeking to limit number of lawyers who could question witnesses, would be granted; held, the examination cross-examination during a deposition proceed in the same manner as at trial, citing FRCP 30(c), and citing FRE 611 for the notion that the mode and order of interrogating witnesses must be to ascertain the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment)

Continental Casualty Company v. Compass Bank, 2005 WL 8158673 (S. D. Alabama 2006) (court declined to sanction defense lawyer for objecting multiple times in depositions being defended by his co-counsel, saying there appeared to be no specific rule forbidding it, and citing the Applied Telematics case)

Bund v. Safeguard Properties LLC, 2021 WL 1546086 (W.D. Wash. 2021) (striking testimony of witness, as sanction for conduct of defense counsel in having second attorney question witness in allegedly harassing manner, citing local rule that limited examination of a witness at trial to one attorney; held, because FRCP 30 says the examination of a witness should proceed as if at trial, and because the local rule in that district limited trial examinations to one attorney, it was improper to have two attorneys conduct the examination in a deposition)

Finjan, Inc. v. CISCO Systems, Inc., 2019 WL 7753437 (S.D. Calif. 2019) (held, defendant in patent infringement case would not be allowed to have two attorneys question the same expert witness, notwithstanding that at least one expert submitted a 2,000 page report, not including exhibits, and that different lawyers for CISCO had expertise in different patents at issue; court acknowledged that CISCO was “correct that there is no written rule categorically prohibiting deposition questioning by more than one attorney”)

Rockwell International, Inc. v. Pos-A-Traction Industries, Inc., 712 F. 2D 1324 (9th Cir. 1983) (“it was not a per se abuse to have two attorneys ,rather than one, question one of the plaintiffs in a deposition, where plaintiff had two actions pending - one state and one federal - and defendant had different counsel handling each that were combined for purposes of some discovery")