Absence of Opposing Counsel Is No License to Abuse the Witness
Absence of Opposing Counsel Is No License to Abuse the Witness
Opposing counsel does not appear for a key witness’s deposition. The examination proceeds without objections or follow-up questions from the other side. But that apparent advantage can disappear if the questioning becomes abusive.
In Sherrod v. Nexion Health at Marrero, Inc., No. 25-1248 (E.D. La. Sept. 23, 2026), plaintiff’s counsel’s treatment of an unrepresented witness prompted the court to prohibit use of her deposition absent express authorization from the district court. Defense counsel did not attend because they reasonably believed the deposition would be rescheduled. Plaintiff’s counsel nevertheless proceeded without notifying them. The opinion quotes extensively from the transcript and identifies several problems with counsel’s examination:
- Disparaging the witness’s credibility: “I heard what you said, it’s just not — it’s frankly just not believable.”
- Ridiculing the witness’s lack of legal knowledge: “Excuse me, not only does state law not allow it, your own policies and procedures don’t allow it, so I would urge you to perhaps study a little harder.”
- Using suggestive leading questions: “Now you know that there is a bare minimum numeric nursing hours per patient day required at the skilling [sic] nursing facility in Louisiana at 2.35, correct?”
- Making empty threats to the witness: “If you speak over me, I have no choice but to ask the judge to order you to my office.” (An empty threat because there was little chance the trial judge would order the witness to travel from Louisiana to the lawyer’s office in California.)
- Repeatedly cutting off the witness’s testimony and suggesting a desired narrative instead. According to the court, the witness was eventually reduced to uttering terse affirmative responses to the attorney’s “questions.” For several pages, her answers consisted of “correct,” “yes,” and “uh-huh.”
The court found that counsel had abused the discovery process by taking improper advantage of a one-sided deposition. “The transcript shows that [the witness] remained polite, patient, and even apologetic for the duration of the deposition,” the court remarked. “By contrast, Plaintiff’s counsel’s behavior was grossly unprofessional under the standards set forth in the [Louisiana State Bar Association] Code of Professionalism.”
The Sherrod court also faulted counsel for not apologizing to the deposition witness for subjecting her to cursing, insults, and ridicule. In addition to restricting use of the deposition, the court allowed the parties to depose the witness again within the applicable deadline and awarded defendants their reasonable fees and expenses incurred in connection with the motion.
An uncontested deposition has little value if counsel’s conduct makes the resulting testimony unusable.
Other Ways to Jeopardize Witness Testimony
An abusive examination is not the only way to jeopardize witness testimony. An unprepared expert or failure to follow court orders can also put that testimony at risk.
For example, in Gallegos v. Brewski’s, 2026 UT App 120, the appellate court upheld exclusion of an expert’s trial testimony after the expert appeared unprepared for his deposition and counsel improperly terminated the examination.
In IEA Constructors v. Westwood Professional Services, No. 23-cv-588 (W.D. Wis. June 15, 2026), the court had directed the defendant to limit its deposition designations for trial to one hour of testimony per witness. The defendant nevertheless designated more than an hour for four witnesses, including approximately 2.5 hours for two of them. The court offered three options: shorten the designated testimony, take new trial depositions lasting no more than one hour, or forgo calling those four witnesses. The concern was the efficient and effective presentation of testimony to the jury. “A party can’t persuade a jury that isn’t listening,” the court observed.
When opposing counsel is absent, resolve any scheduling uncertainty, keep the examination professional, and give the witness room to answer. A deposition taken without opposing counsel has little value if counsel’s conduct makes the resulting testimony unusable.