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 them 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 at 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 them under the table if they 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.)
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 their 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 they know how they would have behaved if they 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 they arrived at that opinion.
Q: “Do you think that the brakes were in working order on the Toyota?”
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 they do 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 their lawyer instructs her not to answer, that they 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 they said to their 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 into 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 actually 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 they were not sure of their 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 they did not know how fast they were going; they did not admit they were speeding.
- Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than they 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 they asked the question earlier and making the objection can throw them off and make them doubt themselves.
- 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.
Originally published 2013-10-15. Last updated 2016-11-11.