Florida weighs new rule on lawyer behavior during depositions | Esquire Deposit Solutions, LLC

The rules governing how depositions are made in Florida may soon change. New court-proposed rules would limit the types of objections lawyers can legally make during depositions, restrict their ability to order witnesses not to answer questions, and allow courts to fine lawyers if their witnesses don’t. not show up for depositions.

Significantly, the proposed new rule on depositions creates a presumption that violations of the deposition rule – including counsel incivility during the deposition – will result in the imposition of expenses, fees or other sanctions against the offending lawyer and his law firm.

Although the process of civil procedure reform in Florida has been underway for nearly a decade, the effort has gained momentum with the recent release of a task force report calling for sweeping revisions to the rules of court. Florida civilian. The task force’s investigation focused primarily on pre-trial discovery proceedings. The practice of deposition has been identified as an area ripe for legal reform.

The task force’s report is expected to generate wide interest both inside and outside Florida. The problems arising from the backlog of civil cases, abuse of discovery processes, inefficient practice of motions, incivility and the use of delay as a litigation strategy are not unique to the courts of this State.

The Florida Supreme Court requested publication of the task force’s proposals in the March 1 issue of Florida Bar News and set a comment deadline of March 31, 2022. The task force report noted that it was specifically tasked with investigating the extent to which existing court rules sufficiently address and deter (1) breaches to prosecute cases, (2) violations of discovery, (3) the assertion of unsubstantiated claims or defenses, or (4) otherwise caused undue delay in litigation.

The task force looked at four broad areas that could contribute to more effective case management:

  1. Improve case management practices by judges and court officers, such as early judicial intervention in civil cases, and setting pre-trial deadlines and trial dates.
  2. Keeping records on time meeting timelines for pretrial discovery and pretrial motions, limiting lawsuits, identifying failed prosecutions, and expediting small claims.
  3. Improving Case Reporting and Judicial Accountability as a means of encouraging effective case management.
  4. Develop continuing education resources raise awareness in the legal community of the need to improve case management.

In the area of ​​depositions, the task force proposed a one-two-three punch: first, a new rule setting out the professional obligations of lawyers; second, a new rule establishing standards for the behavior of lawyers during depositions; and third, another new penalty rule that gives courts the power to impose severe penalties for attorney behavior that fails to meet Florida standards of professionalism and civility.

The Task Force’s professionalism proposal, Rule 1.279: Standards of Conduct for Discovery, warns against “surprise tactics, delays, deception, and concealment of information that may be discovered” and reminds attorneys that “don’t Failure to comply with discovery obligations by delaying, obstructing the truth, or failing to be candid with the court or opponents is an abuse of discovery over which the court has broad discretion. Proposed Rule 1.279 also provides that Florida attorneys have a legal duty to conduct themselves in a manner consistent with their Oath of Admission to the Florida Bar, the Florida Bar Creed of Professionalism, the Expectations of Professionalism of the Florida Bar, Rules Governing the Florida Bar, as well as the Florida Handbook on Civil Discovery Practice.

The proposed new rule on depositions, Rule 1.335: Standards of Conduct in Depositions, Objections, Claims of Privilege, Termination or Limitation, Failure to Appear and Penalties, addresses several important areas of deposition practice:

  • Conduct in depositions. “Lawyers have a duty to conduct themselves in accordance with the standards of behavior set out in Rule 1.279.”
  • Conduct of witnesses. Lawyers must advise clients and witnesses under their control to “act with honesty, fairness, respect and courtesy”.
  • Objections during depositions. Objections permitted by law must be made when filing. “Any legally permissible objections during a deposition must be made concisely and in a non-argumentative and non-suggestive manner.”
  • Instruction not to respond. Limited to where necessary to preserve privilege, to enforce a court-ordered limitation of evidence, or to make a motion to terminate or limit testimony. “Otherwise, the contested evidence must be taken subject to the objections.”
  • Failure to appear or serve a subpoena. A court can impose penalties if a witness fails to appear for a statement.
  • Sanctions for misconduct during depositions. “Lawyers are officers of the court who are responsible to the judiciary for the regularity of their professional activities. Harm is presumed if filing rules are violated.

Finally, in this area, the Working Group has proposed a new Supplemental Penalty Rule (Rule 1.275) that clarifies the penalties that judges are authorized to impose on attorneys found to have violated the rules of evidence.

The listing of the Florida Supreme Court’s proceedings on the revision of the Civil Procedure Rules is In Re Report And Recommendations of the Workgroup on Improved Resolution of Civil CasesNo. SC22-122.

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