In litigation, the customary way of doing things often becomes the precedent for doing them, even when there is a procedural rule governing those actions that is inconsistent with, if not contradictory to, the custom. This is especially true for aspects of litigation like depositions that are generally outside of judges’ lines of sight, unless disputes arise.

Sometimes, relying on a custom that is inconsistent with a procedural rule can lead to a “no harm, no foul” situation. But that won’t always be the case, and can be especially damaging to a client’s interests when the foul might not be called until later in the litigation when the stakes are higher.