You’re taking your first (or tenth) deposition. Make sure you are ready to handle objections. And make sure you know which objections are proper and which are improper. Once you are armed with that information, you can keep the deposition proceeding smoothly.
Face it, depositions can be tedious. But they are so important in litigation. Deposition testimony can make or break a case.
When I was preparing to take my first deposition as a new lawyer many years ago, I sat down and read a book (no internet back then) that discussed deposition techniques. I was surprised to learn that very few objections are proper in a deposition.
Many lawyers have not done their homework and make deposition objections that are improper and interrupt the flow of information. And there are other lawyers who have done their homework and make objections simply to interrupt that flow and to intimidate opposing counsel.
Remember, the purpose of a 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. Rather, can it lead to admissible evidence?
Improper Deposition Objections.
- Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is so far afield, a relevance objection may be warranted.
- Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition. For example, if you ask the deponent, “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. 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.
- Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence.
- Calls for an opinion. You do not need to lay foundation 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. Those 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. Objections should be stated succinctly in a non-argumentative and non-suggestive manner.
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. You can 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 the one rare case in which a deponent should be instructed to refuse to answer.
- Form of the question. This objection is usually asserted to make a clear record. For example, if the question is compound and the person answers yes, what portion of the question are they agreeing with? A form objection should also be made to a confusing question, as well as a question that calls for the witness to speculate. Form questions are waived if they are not made during the deposition.
- Mischaracterizes earlier testimony. This is also to make sure there is a clear record.
- Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than was given a few hours earlier. If you don’t make the objection and your client does provide differing information, your client has obviously lost credibility.
- Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, state on the record that if the specified conduct continues, you will terminate the deposition. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed.
Whether you are defending or taking a deposition, knowing how to make and respond to objections, will lead to a more productive process.
(photo: http://www.flickr.com/photos/clairedancer/273214248/)
Susan Minsberg is civil litigator in multiple areas of law including contracts, business, real estate, family and employment in St. Paul Minnesota. Find more about Susan at minsberglaw.com
Read the comments below or add one of your own.
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.
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.
Good article. In Texas, the only permissible deposition objections (besides “privilege”) are “Objection, leading”, “Objection, form” and “Objection, nonresponsive.”
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?
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.
Definitely agree on the last point. I almost always have a video camera going, even if just for my own use.
Susan,
Thank you. This is such an excellent post. One of my favorites. Lawyerist just keeps getting better.
This was very useful information. Thank you!
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.
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.
Thanks, this is helpful.
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).
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.
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.
What about “objection: vague”?
That would be an objection to the form of the question.
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