Whether you are defending (or taking) your first deposition or your hundredth, you’ve got to be ready to handle deposition objections properly. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly, avoid embarrassing yourself, and feel confident when some overzealous know-it-all tries to bully you or your client.
Preparing Your Client
First things first. You have to prepare your client. Start by reviewing the case with your client, and walk her through the questions you expect her tormentor to ask. Practice asking questions you think the deposing lawyer will ask—especially the hard ones you hope they won’t.
If you represent the plaintiff, review the complaint and walk through the facts as you’ve claimed them to be. Discuss the opposing party’s defenses and you expect to respond. Examine the damage calculations.
If you represent the defendant, reflect on the facts your client has alleged in her answer. Discuss the defenses you’ve surfaced, and your side’s reasoning and factual support for each of them. If your client raised a counterclaim, cross-claim, or third-party claim, make sure your client understands the damages (and how you calculated them).
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 taking a deposition is to gather information, not to show off. The acceptable 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 ultimately be admissible. The standard is whether the information you are seeking could lead to admissible evidence. So, information you cannot seek at trial can absolutely be fair game in a deposition. That is their beauty and their power.
Remind your client of a few things:
- Answer only the question you’re asked (and nothing more). For example, if you are asked what day it is, answer “Tuesday.” Do not answer “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 are 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 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” or “I don’t remember” if you don’t know (or you don’t remember). Do not speculate or guess, and don’t let your inquisitor pressure you into speculating or guessing.
- 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 vitally 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 the 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 do not know 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 anyway, simply to interrupt and to intimidate opposing counsel.
Making improper deposition objections does interrupt the flow of the deposition, so you may be inclined to think it hurts the lawyer taking the deposition. Maybe, maybe not. But it can also interfere with your client’s concentration, and you can lose credibility if you continue to object (particularly when those objections are improper, and they probably are).
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.”) If the lawyer gets out of control, you might dictate the play-by-play (“Mr. Jones is now standing up, leaning over the table, pointing his finger in my face, and continuing to scream. The vein on his forehead appears to be teetering on the edge of bursting.”) Above all, stay calm, make a clear record, and get the judge on the phone if necessary.
Improper Deposition Objections
- Irrelevant. If the question has the potential to uncover a crumb of 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 will ultimately lead to admissible evidence.
- Hearsay. While a hearsay objection is appropriate at trial, it is not 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. That is, based on the answer, a lawyer can then decide whether to take Jane’s deposition and, in turn, ultimately uncover admissible evidence by asking Jane directly. If Jane’s testimony is important, you can call Jane as a witness to testify at trial. Remember, you can’t ask someone “What did Jane tell you?” at trial because Jane should be subjected to cross-examination to determine her credibility at trial. (There are, of course, exceptions that I won’t discuss here.)
- Assumes facts not in evidence. Since you’re not in trial, you can “assume facts not in evidence” until you’re blue in the face. For example, you can ask “If you had known X, how would you have behaved differently?” But be careful here. As with everything in lawyering, whether this objection is proper depends. Lawyers shouldn’t let their clients speculate, for example. And objection is perfectly appropriate if it calls for speculation. On the other hand, 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 is less important in depositions. For example, the questioner doesn’t need to establish foundation to inquire about the deponent’s opinion, even on something that might otherwise require education, training, and experience to answer. It is appropriate to ask for an opinion and how a witness 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 explore 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 testify. Nor should the lawyer use objections to coach her client. But this is one of the oldest and most ubiquitous tricks in the book. The lawyer cannot say that they do not understand the question. It is up to the deponent to ask for clarification. The ever-popular “…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.
Don’t let yourself get bullied by an opposing lawyer who insists on making improper objections. If he makes several improper objections, you have a few ways to respond. You can ask, for example, why he voiced the objections (since they are not required for the record). Be prepared for that to lead to an argument.
If that discussion gets you nowhere, try telling the other lawyer that you will assume that there is a standing relevancy (for example) objection to every question, so he no longer needs to make the objection. If neither of those tactics works, just try to tune out the objections and proceed.
Inform the deponent that unless their 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. You need to make it, or you waive it. This covers any privilege, including 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, your client may have waived the privilege. 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 used to make a clear record. Questions with objectionable form come in many shapes and sizes, and the proper objection probably depends on your jurisdiction. Some jurisdictions only require that the objecting 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 used to clarify the record. For example, if the deponent first said 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 the bullying or harassing behavior continues, describe the specific conduct that is objectionable for the record, and warn 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 2018-06-05. Republished 2019-10-30.