In “Lawyer’s Guide to Cross-Cultural Depositions” we talked about foreign language deposition translators, courtroom interpreters, and the fact that cultural differences can affect nonverbal communication. In American culture, for instance, looking someone straight in the eye is a statement of open and honest communication, while in other cultures it is a sign of disrespect. We also blogged about occasional poor behavior towards non-English-speaking witnesses in interpreted depositions. We have all heard about outrageous stories involving the lengths attorneys will go to in prompting or signaling deponent answers during a deposition. For instance, there is the sudden coughing fit that one suffers every time the deponent should answer, “I cannot recall”. Likewise, there is “The Bob”, that slight shake of the head while looking over documents – careful to avoid eye contact – signaling that the answer is “no”.
And what about that faux-intelligence move of sliding one’s glasses down their nose, thus telling the witness to “shut up!”. Finally, there is the less subtle but just as convincing kick to the shin underneath the deposition table.
Regardless of what context these covert signals are made, they often become commonplace when dealing with foreign language speaking clients or with witnesses who have limited English proficiency. Although they may not be able to understand certain words, body language like a kick in the shin is universal.
Are there sanctions against such behavior? Does an opposing attorney or court reporter have an ethical obligation to interrupt these “foreign language translations”? Under most codes of ethics, coaching a witnesses is unethical. However, in such instances as those listed above, the key is pointing them out. For example, if you see the Bob happening, when the witness looks at their attorney simply state on the record “Your lawyer can’t help you with that” or “the jury is over there”. This usually takes care of the problem. Likewise, for such signals as the glasses move, you must not stay quiet. Thus, it is essential that you raise the issue immediately in court and let the judge handle it from there.