The Quick and Dirty on Objections in Depositions



The Basics of Deposition Objections

I’ve spent way more time than I should have reading nitty gritty rules about depositions and what state v. federal stipulations apply (hint: I still can’t tell for sure, so I think that is maybe a pretend area of law an area subject to interpretation)  but here is what you really want to know going into a deposition: “When do I object?” and “Hey, can he object to that?”  And no, it isn’t just the younger attorneys who mess this up. It’s easy to forget which objections to make during a deposition and which to ignore, which is why I have this handy cheat sheet for you here! In Arkansas, all objections are typically reserved except to the form of the question and privilege. If you have questions about that (especially if you are dealing with a new opposing counsel or opposing counsel is from out-of-state), you should clarify that everyone else understands that to be the case.

To Object or Not Object?

Sitting in a conference room full of lawyers and videographers and witnesses can be intimidating, especially when it’s time to yell out an objection. Plus, there usually isn’t a lot of time to think about it. Usually they say it’s better to be thought a fool than to open your mouth and remove all doubt, but this is a situation where you want to head the other direction. It’s better to make a few bad calls on a deposition transcript now then to find out that you waived an important objection later. I recently made a bad objection (I said “compound” when I meant “ambiguous”) and the opposing counsel gave me a rough time for it. But, that shouldn’t stop you because 1) most of the time no one will even say anything and 2) that’s really the worst that can happen.

So…go forth and object!

The Quick & Dirty of Deposition Objections*

Two types of objectionsprivilege and objection to the form of the question.

1. Asserting a privilege: if your client is being asked privileged information, speak up now! Do not let them answer and potentially waive privileged information. This one is easy enough, but it’s why it is really important to pay attention and not get caught playing Angry Birds.

2. Objection to the Form of the Question: there are lots of different types of forms that could be objectionable. These are the ones you want to listen for:

Vague-for some reason, the question isn’t clear enough. I think this is especially something to watch for when you are dealing with periods of time. “Did you own a gun?” Well…when? Before the robbery was committed or after? That could be important. If you point out the vagueness that you are objecting to, counsel will usually rephrase the question.

Unintelligible-soothenyouwerealllikeerrrhhhhj…Right? If you are thinking, “What did they just say?” this is probably the right one, unless your vocab is just really bad. This is important with witnesses too…make sure you understood what they said before you give that question a little tic in the box.

Ambiguous-the question could mean more than one thing. See the following excerpt from The Office (Season 4, Ep. 8) and see if you can spot where the ambiguity is:

Lester:    How long have you known Ms. Levinson?
Michael:  Six years and two months.
Lester:     And you were directly under her the entire time?
Michael:  That’s what she said.
Lester:     Excuse me?
Michael:  That’s what she said.
Lester:     Ms. Levinson told you she was your direct superior?
Michael:  Uh, wh-why would she say that?
Jan:         Can we just move on to another question?
Diane:     No wait, I don’t understand. Who’s on record on saying this?
Lester:    With all due respect, I’m in the middle of a line of questioning. Now Mr. Scott, what did you say Ms. Levinson said? Regarding your employment status with respect to her corporate position.
Michael:  Come again? That’s what she said? I don’t know what you’re talking about.

Compound-there are really two questions being asked: “So, you went to the store that night and ran home?” If the witness answers “Yes,” are they answering yes to the fact that they went to the store? That they ran home? Both? Who knows…that’s why you object!

Calls for Speculation-“If you had known your best friend planned to rob your grandparents’ store that night, would you have tried to stop him?” Basically, if the witness is just guessing at shoulda/coulda/woulda/ or “how would you feel about” type questions, this is probably the right objection.

Argumentative-counsel isn’t really asking a question to gather facts, so much as explaining his/her own view of the situation and making the witness argue about his/her view. This is also known as “badgering the witness,” which is a phrase I fully support using because I like the way it sounds.

Asked and answered-this one is pretty self-explanatory. Again, this one explains itself.

Incomplete hypothetical-A good example of this is if you are questioning an expert witness and getting opinion testimony about a situation that will hopefully sound good. But, if you leave out enough facts that the situation is not analogous to the one you are attempting to make it analogous to, you can draw an incomplete hypothetical objection.

Harassing-there is literally no point to this question, except to harass the witness; i.e., “Mrs. Jones, before we talk about your car wreck, how about you finally answer the question of why Pillsbury took away your Blue Ribbon from last year’s bakeoff?”

Leading-(if not adverse witness) It’s probably fair to say that you know this one already, right?

Assumes Facts Not in Evidence-I’m terrible about this one and its sibling (lacks foundation) because I’m usually in a hurry to get to the point. If you hear these objections being raised, back up a few steps and take it slower to get to your point. Similarly, if someone is charging forward, you can raise this objection. Oftentimes, counsel will let these go if the underlying matters aren’t in dispute.

Misstates the Evidence-this is another easy trap to fall into.

3. Other (But, I thought there were only two categories?!) These are the non-form objections that you will hear frequently:

Irrelevant -this is a evidence question, it doesn’t need to be raised at a deposition unless it also fits into one of the other categories above.

Hearsay-also an evidence issue, not an issue in a discovery deposition.

*Note: If you are going somewhere foreign, like NY or Canada, you should probably not rely on this. See also, Texas.

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