Proper Deposition Objections

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Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself.

Preparing your client

First things first. You must prepare your client for the deposition. Start by reviewing the case with your client, along with the questions you anticipate will be asked. Practice asking questions you think the deposing lawyer will ask — especially the hard questions you hope will not be asked.

If you are representing the plaintiff, review the complaint and walk through the facts alleged. Discuss the defenses raised and how the plaintiff might respond. Examine the damage calculations.

If you represent the defendant, reflect on the facts alleged in the answer. Discuss the defenses, and particularly the reasoning and factual support for each of them. If your client brought a counterclaim, cross-claim, or third-party claim, make sure your client understands the damages, including how they were calculated.

No matter which party you represent, carefully walk through the discovery responses. Play devil’s advocate with your client and challenge him or her with the hard questions.

Remember, the purpose of a taking deposition is to gather information, not to show off. The permissible scope of discovery is whether the information you are seeking is reasonably calculated to lead to the discovery of admissible evidence. The standard is not whether it will be admissible; the standard is could the information you are seeking lead to admissible evidence? So, information you cannot seek in trial can be fair game in a deposition and that is the beauty of depositions.

Remind your client of the following:

  • Answer only the question asked. For example, if you are asked what day it is, answer “Tuesday,” not “it is Tuesday and it’s my daughter’s birthday today and the sun is out.” (At the deposition, make sure you are sitting close enough to your client that you can kick him under the table if he is talking too much. I have had to do that during many depositions!)
  • If you do not understand a question, ask for clarification.
  • Do not get upset or otherwise react to the questions. Body language can be very revealing.
  • Do not look at your lawyer for help.
  • Don’t be afraid to say “I don’t know.” Do not speculate or guess.
  • Ask to take a break if you need one. (Be careful of what you discuss during the break; it is probably discoverable once the deposition resumes.)

Objecting

Depositions can be tedious, but they are so important in litigation. Deposition testimony can make or break a case. It is sworn testimony that can be used to impeach at trial. It can expose the relative strengths and weaknesses of each party’s case. It can lead to crucial admissions or denials of liability. Through deposition testimony, you can truly push for quantification of damage claims.

When I was preparing to take my first deposition as a new lawyer many years ago, I sat down and read a book about deposition techniques. I was surprised to learn that very few objections are proper in a deposition. After observing several depositions, I discovered that many lawyers have not learned this. Lawyers often make deposition objections that are improper and interrupt the flow of information. And there are lawyers who have learned which objections are proper, but who make improper objections simply to interrupt and to intimidate opposing counsel.

Making improper deposition objections does interrupt the flow of the deposition, so you may think it hurts the lawyer taking the deposition. It can also interfere with your client’s concentration, and it can lead to a loss of credibility for the lawyer who continues to object.

No matter how opposing counsel behaves, keep your cool at all times. This is not always easy. If the other lawyer starts yelling, note his tone of voice on the record. (So the court reporter can take down your comments, say something like “let the record reflect that Mr. Jones is shouting” out loud.) If the lawyer gets out of control, you may wish to dictate a play-by-play of what is happening (“Mr. Jones is now standing up, leaning over the table, pointing his finger in my face and continuing to scream”). Above all, stay calm, make a clear record, and get the judge on the phone if necessary.

Improper deposition objections

  • Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is too far afield, though, a relevance objection may be warranted. The line is hard to draw here. It boils down to a judgment call on whether the question is likely to lead to admissible evidence.
  • Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition. For example, if your client is asked “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. If you are taking the deposition, you can determine based on the answer whether you should take Jane’s deposition, and you can then ask Jane directly. If Jane’s testimony is important, you can call Jane as a witness to testify at trial. Remember, the reason you can’t ask someone else what Jane said at trial is that you need to be able to cross examine Jane to determine her credibility. (There are, of course, exceptions that I won’t discuss here.)
  • Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence. For example, it is permissible to ask “If you had known X, how would you have behaved differently?” However, be careful here, as this could be a proper objection depending on the question. Do not let your client speculate and object if the question calls for speculation. You may want to let your client answer if she knows how she would have behaved if she had known X.
  • Calls for an opinion. Foundation does not need to be established to determine whether the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that opinion.Q: “Do you think that the brakes were in working order on the Toyota?”
    A: “No.”
    Q: “Why not?”
    A: “When I drove it 2 weeks before the accident they were acting funny.”

    The lawyer taking the deposition can obtain information that may not otherwise have been received in written discovery and the answers can lead to discoverable evidence.
  • Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor should the lawyer coach the deponent with objections. The lawyer cannot say that she does not understand the question. It is up to the deponent to ask for clarification. “If you know” and “if you remember” are coaching objections. However, you may ask, “Who is she?” when the deponent uses the word “she” unclearly in a question. That is not speaking or coaching, because it does not suggest the answer. Objections must be stated succinctly in a non-argumentative and non-suggestive manner.

Do not let yourself get bullied by an opposing counsel who is making improper objections. If several improper objections are made, there are a few ways to respond. You can ask, for example, why the objections are being made, as they are not required for the record. Be prepared for that to lead to an argument.

If that discussion gets you nowhere, you may wish to tell the other lawyer that you will assume that there is a standing relevancy (for example) objection to every question, so the objection no longer needs to be made. If neither of those things works, just try to tune out the objections and proceed with the deposition.

Inform the deponent that unless her lawyer instructs her not to answer, that she should answer the question. (There are rare instances in which a lawyer can properly instruct a deponent to refuse to answer.)

Proper deposition objections

  • Privilege. This is the big one. It must be made or it is waived. This covers any privilege, such as attorney-client and physician-client. Object if your client is asked what he said to his lawyer. Of course, the deposing lawyer can properly ask “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is also the one case in which you should instruct your client not to answer. If the opposing lawyer continues to attempt to invade the privilege, you can threaten to terminate the deposition. If the privilege questions continue, terminate the deposition.
  • Form of the question. This objection is usually asserted to make a clear record. Form questions fall in several categories. Some jurisdictions only require that the lawyer state a general “form” objection. Others require that the type of form objection be stated as well. Form questions are waived if they are not made during the deposition.
    • Compound. If the question is compound and the person answers yes, what portion of the question are they agreeing with? For example, if your client is asked “When you turned left were you in the turn lane and was your signal on and was the light green and how do you know”— object! Ask the lawyer to ask one question at a time.
    • Confusing. I know I stated above that it is improper to ask for clarification, but it depends. If the question is truly confusing, an objection may be proper.
    • Calls for speculation. A form objection should also be made to a question that calls for the witness to speculate. Be careful, though. Don’t suggest an answer, which would not be proper.
  • Mischaracterizes earlier testimony. This is also to make sure there is a clear record. For example, if the deponent earlier stated he was not sure of his speed, and was then asked: “So you testified earlier that you were speeding …” it is proper to object as mischaracterizing earlier testimony. The deponent said she did not know how fast she was going; she did not admit she was speeding.
  • Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than he gave earlier in the deposition. If you don’t make the objection and your client does provide differing information, your client loses credibility. And the testimony can be used for impeachment at trial. The opposing lawyer may not realize that he asked the question earlier, and making the objection can throw him off and make him doubt himself.
  • Calls for a legal conclusion. Deponents are there to testify about facts, not legal conclusions. If the deponent is a lawyer, it may be a proper question, depending on the circumstances. Otherwise, it’s not.
  • Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, describe the specific conduct that is objectionable for the record, and further state on the record that you will terminate the deposition if the behavior continues. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed or bullied. As with privilege, if the lawyer does not stop the harassment, terminate the deposition.

Many lawyers underestimate the importance of depositions. Whether you are defending or taking a deposition, knowing how to make and respond to objections, will lead to a more effective and productive deposition.

This post was substantially revised and republished on October 15, 2013.

Lawyering Skills

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  • http://bunkerlawgroup.com/ Ben Bunker

    Susan,

    Excellent post! Having spent a lot of my past experience doing civil litigation and depos, this is a salient issue. I remember cringing at a group deposition (CD case) when counsel vehemently objected to “relevance.”

    I would add a little note on form objections. At least in my jurisdiction, you can’t simply state, “objection: form.” You have to specify what is flawed in the form of the question in order to make a proper record. This was hammered into me early in my career by far more experienced attorneys. This may be a result of laziness or an interruption technique, but for new attorneys, be as specific as you can be with your objections (but not to the point of making speaking objections) in order to make a clear record.

  • Pat Stoneking

    Great advice. Making repeated deposition objections is a strategy some lawyers use if they feel they can get away with it. They might also use long-winded speaking objections to signal their client that a question needs extra consideration. This is against the rules and you have to deal with it yourself.
    If you run into one of these attorneys, be confident with these rules, tell them to cut it out and be ready to get the judge on the line. 99% of the time the useless objections will stop there.

    Also, know what people are allowed to be present at the deposition. A spouse or other comforting person is allowed to be there if they are a party to the case. That doesn’t stop attorneys from asking them to leave anyway.

  • http://www.oceanlawusa.com/ Scott

    Good article. In Texas, the only permissible deposition objections (besides “privilege”) are “Objection, leading”, “Objection, form” and “Objection, nonresponsive.”

  • Lawrence Berezin

    Susan,
    Great post on an always timely, law topic. Possessing the skill to take a great deposition is critical to the success of a case. What tools do you use to ward off a biligerant, adversary? Can you give me some examples?

  • Adron Beene

    If you face a bully, read up on your local rules for terminating a deposition and moving for a protective order, a motion to compel, and sanctions. If defending and there is an area of dispute, suggest that the questions on disputed issues be set aside until later. State your meet and confer on the record. If a party is objecting and coaching witnesses improperly, demand they stop or you will terminate the deposition and file a motion for a protective order and sanctions. Beware that you run a risk when you terminate a deposition if you are wrong. So read up on it in your jurisdiction. Finally, Video depositions calm people down.

    • http://lawyerist.com/author/samglover/ Sam Glover

      Definitely agree on the last point. I almost always have a video camera going, even if just for my own use.

  • http://HoudiniESQ.com Frank Rivera

    Susan,

    Thank you. This is such an excellent post. One of my favorites. Lawyerist just keeps getting better.

  • http://www.kellygamble.com kelly gamble

    This was very useful information. Thank you!

  • Steve Basche

    I like you “asked and answered” objection as a clue to your client to make sure he or she is aware of the fact that they need to be consistent. I tell my clients in depo preparation to listen to my objections because sometimes they may give you a clue about a problem with the question that while not truly objectionable, may need them to focus or clarify.

  • http://www.hartmannlaw.net Patricia Hartmann

    If you have obstructionist opposing counsel, cite to relevant caselaw such as Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.Pa. 1993),warn the deponent’s attorney that you will terminate the depostion if the obstruction continues, then follow through with a motion for sanctions. Most judges will not tolerate interference with the deposition process. Seek fees. Get a special master appointed. Do not allow your valuable opportunity for deposition responses to be wasted.

  • Bill O’Brien

    Thanks, this is helpful.

  • Doug

    Here’s a case approving a lawyer instructing a witness not to answer in a deposition based on “asked and answered,” the court finding that the questions were irrelevant and harassing – Eckert v. Hurley, 638 F.Supp. 699 (ND Ill. 1986).

  • Chris

    I disagree with some of your improper objections. A deposition may later be used for impeachment, even possibly trial testimony if a witness becomes unavailable. Since no judge is present, you are preserving your objection for a potential later ruling. That’s why you object and then say, “You may still answer.” Hearsay, opinion and speculation are all valid objections at a depo as they may later be sustained by a judge if an attempt is made to use the deposition at trial.

    • david

      I believe if the depo testimony is to be used at trial you can still object to the entry of testimony onto the record. It’s only the objections specified in the post that are waived unless raised at the deposition.

  • jtm

    What about “objection: vague”?

    • http://lawyerist.com/author/samglover/ Sam Glover

      That would be an objection to the form of the question.

  • http://www.newyorkparkingticket.com/ Lawrence “Larry” Berezin

    I returned to this thread again because I was notified of the last comment and reply. This is a super conversation that demonstrates how helpful lawyers are to each other. The questions are great, but the quality of the replies are greater.

    Thanks to all!

    Best wishes for a prosperous and healthy thanksgiving. Who amongst us is strong enough not to eat too much?

    Larry

  • http://www.thecyberadvocate.com/ Brian Focht

    My former boss and mentor Gray Wilson (author of the NC Civil Procedure guide, which he refers to as “The Very Learned Treatise,” he’s freaking hilarious) always gave two rules to clients for depositions: 1) be nice, 2) be brief.

    Those two rules, as any truly great rule based on simplicity, conveys so much more than the words seem to have on their own (another of my favorite simple-yet-profound rules: winning at basketball requires you to score more points than the other team… just figure out how.)

    By being nice, the deponent’s job is to avoid responding to attorneys who attempt to harass or intimidate the witness, and also give the opposing attorney (and anyone else attending or viewing the deposition) a challenge when considering how to conduct an exam/cross-exam at trial.

    By being brief, the deponent only answers the questions that were asked, and only in a concise manner. One of my favorite tricks while taking a deposition is to wait until the deponent has finished their answer, and then wait a few seconds. I keep looking at them, as though I expect them to say more, and usually, they do. Nervous people hate silence!

    • Eric Voigt

      You are exactly right–people do not like silence. Good tip on pausing before you ask the next question. You never know what the deponent will say next.

  • Jaded

    It is not appropriate to “kick” a witness under the table during testimony. This is coaching the witness and grounds for a firm response if uncovered by the questioning attorney.

  • http://www.rossandrosslaw.com Ross & Ross

    Great post–still just as relevant and informative now!