You did it. You sat through two straight hours of deposition questioning, and you can finally get up and stretch your legs. After a bathroom break, you see your attorney in the hallway, and walk over to him to ask how it’s going—but he stops you in your tracks. He directs you back to the deposition room, and you’re confused, not sure what you did wrong. After all, opposing counsel wasn’t around at the time. Shouldn’t you be able to confer with your attorney whenever you want?
Why It Is Best to Avoid Talking to Anyone During Deposition Breaks
Witnesses will often make the mistake of thinking that the “microphone is off” during deposition recesses. As a result, they can jeopardize their cases by talking to others during breaks, before the deposition begins, and as the session is wrapping up—and any one of these conversations may be considered fair game by the opposing attorney.
Here are three reasons to keep mum while your deposition is in recess:
- Attorney-client privilege. While your attorney-client privilege protects you from discovery questioning during confidential communications and conversations between you and your attorney that were for the purpose of obtaining legal advice, privilege does not protect all discussions between you and your attorney.
- Court discretion. Past courts have decided that conferences between witnesses and attorneys are prohibited during the deposition and during recesses, just as they are during trials. However, many attorneys disagree with the ruling, and it may be up to your attorney to object in court.
- Changes in testimony. If you confer with your attorney during a break, and he advises you to change your testimony, opposing counsel will likely ask why you have changed your mind. Once you reveal that your attorney told you to during the break, the content of the entire conversation may be brought into question, further damaging your credibility.
Since getting assistance during breaks is a tricky matter, it is best to confer with your attorney in advance as much as possible in order to prepare for your deposition.