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.