Technology’s Effect on Advocacy
during testimony, including by text message, chat feature, off-screen signal, or whisper, constitutes conduct prejudicial to the administration of justice in violation of ABA Model Rule 8.4(d), and may also violate Model Rule 3.4(c) on obeying tribunal rules and Model Rule 3.4(a) on obstructing access to evidence. The California Rules of Professional Conduct mirror the relevant Model Rules in substance, and California Business and Professions Code § 6068(d) independently requires counsel to "employ … those means only as are consistent with truth." An attorney engaged in real-time coaching thus faces exposure on three tracks: discovery sanctions, professional discipline, and potential disqualification.
looks at the camera or an exhibit if one is being shown to the deponent. A witness who is consulting unauthorized resources looks elsewhere. The second cue is auditory. Whispers carry on a microphone designed to pick up speech in a quiet conference room. Counsel positioned out of frame but in the same room as the witness may be heard on the witness's audio track, even when the counsel's own microphone is muted. Pauses before answers can indicate that the witness is reading something or being signaled. The recording will often capture more than the deposing counsel hears in real time, which is why obtaining and carefully reviewing the official audio and video after the deposition is essential if coaching is suspected. The third cue is behavioral. A witness who consistently asks for questions to be repeated or "clarified" immediately after counsel's objection, particularly speaking objections, or objections that include suggestive phrases such as "vague," "if you know," or "if you recall," is being cued by the objection itself. When these cues appear, the deposing counsel should act on the record. Ask the witness directly whether the witness is receiving communications from counsel or anyone else during testimony. Ask the witness to confirm that any device capable of receiving communications, including phones, tablets, watches, and laptops, is not in the witness's possession or line of sight. Ask the witness's counsel to make themselves and any other person in the witness's room visible on camera. Document each refusal or evasion on the record. If the conduct continues, terminate the deposition under CCP § 2025.470 and seek relief promptly. Agnone confirms the record need not show actual coaching, only conduct that frustrates monitoring.
Detection in Practice
Knowing the law is one thing. Catching real-time coaching is another. Counsel who text witnesses, signal them off-screen, or whisper from off-camera positions are betting that the deposing party will not notice; often, they win that bet. But the experience of plaintiffs' counsel in recent California and federal cases suggests a consistent set of detection cues that every practitioner should be aware of. The first cue is visual. A witness whose eyes track upward, to the side, or downward before answering each question may be communicating with something or someone outside the camera frame. In Joven , the attorney taking the deposition noticed that the witness kept looking down at an object out of camera view, and then saw the reflection of a phone screen in the witness's glasses. In Agnone , the deposing counsel observed that the witness "look[ed] upward" toward his off-camera attorney each time a question was asked. ( Agnone , supra , 111 Cal.App.5th at p. 762.) Eye direction is the most basic and most reliable physical tell. A witness who is answering honestly
47
Consumer Attorneys of California
FORUM September/October 2026
Made with FlippingBook - Online catalogs