By Paul Mark Sandler and John J. Lovejoy
In civil litigation, objection-free depositions are unheard of. Attorneys pepper the transcripts with interruptions. In truth, though, they often make unnecessary objections or fail to make them properly. Conversely, attorneys sometimes waive objections by failing to raise them in a deposition. Here are some helpful guidelines for knowing when and how to object.
1. What objections are necessary?
At a deposition, an attorney is required to object to those defects that are immediately curable--that is, irregularities that opposing counsel can correct at the deposition. Such defects include procedural matters, such as the manner of taking a deposition, the form of questions or answers, the oath or affirmation, and the conduct of the parties.
Timely objections are necessary, for instance, where a question is leading, vague or unintelligible, mischaracterizes prior testimony, calls for speculation, or constitutes a compound question. Problems can also arise with answers. If the attorney taking the deposition believes the witness has not provided a responsive answer, that attorney should object accordingly.
Not all “immediately curable” defects relate to matters of form or procedure. Generally speaking, the rules place value on resolving problems as soon as they arise, and many substantive defects can be corrected simply by rewording questions. Consider this example, in which a plaintiff in an auto tort cases is being deposed:
Defendant’s counsel: Was the traffic light at the intersection red, yellow, or green at the time your car was struck by defendant’s car?
Plaintiff’s counsel: Objection, lack of foundation.
Defendant’s counsel: As you approached the intersection where your car was struck, did you have occasion to observe the traffic light facing you?
Defendant’s counsel: And what color was the traffic light?
Here the objection permitted the defense attorney to pose the question correctly and move on. If plaintiff’s counsel had failed to object, it would have been waived.
2. Incurable Defects
Many substantive objections cannot be resolved by a simple rephrasing. If an attorney asks about irrelevant matters, the questions will usually be objectionable no matter how the attorney poses them. For such an “incurable” defect, a timely objection is not necessary under Maryland Rule 2-415(g).
Where the interrogating lawyer asks a question that contains a substantive, “incurable” defect, opposing counsel can raise the objection when the deposition testimony is offered at trial, or as an exhibit to a motion. Might there be advantages of waiting until trial to raise objections? In some instances, yes. If the objection cuts to the heart of the adversary’s case, lodging it at trial could help diminish the opposing counsel’s courtroom ethos.
If the deposing attorney asks a question that invades a witness’s privilege, such as the attorney-client privilege, the opposing attorney may instruct the witness not to answer. Maryland Discovery Guideline 6 states that where an attorney asserts a claim of privilege at a deposition, the attorney “shall identify during the deposition the nature of the privilege (including work product) which is being claimed” and shall provide certain information about the allegedly privileged communication, including the date and general subject matter of the communication.
How should an objection be made? To be effective, an objection cannot be vague or unclear. Although Maryland Rule 2-415(g) states that the grounds for an objection “need not be given unless requested by a party,” this language presents a trap. If counsel objects to a deposition question that can be immediately cured, the lawyer must state the grounds to avoid waiving it. The objecting attorney must give enough detail to “provide the questioner with the opportunity to obviate the mistake while the deposition is taking place.” (See Davis, 117 Md. App. at 403-04.) This protocol affords the party taking the deposition the chance to re-word the question and cure any problems in it.
Objecting attorneys should be careful not to say too much, however. So-called speaking objections are improper under both the Maryland Rules and Federal Rules of Civil Procedure. When an attorney in a deposition objects, he or she must state the objection concisely, in a non-argumentative and non-suggestive manner.
What does a “suggestive” objection look like? To answer that question, we can turn to a recent decision, Faile v. Zarich, 2008 WL 2967405 (Conn. Super. 2008), in which a Connecticut trial court sanctioned an attorney for making suggestive objections. The opinion identifies several instances of improper interjections. Plaintiff’s counsel was deposing a non-party witness, Dr. Mitchell Driesman, when the following ensued:
Plaintiffs' counsel: And how would gaining access cause a branch of the femoral artery to be sheared off? What mechanically would have to happen?
Defense counsel: I am going to object. This is completely hypothetical. Are we talking about in this case, under a particular set of circumstances?
Plaintiffs' counsel: In the process of gaining access to a femoral artery.
Defense counsel: I just think that is beyond what-Dr. Driesman didn’t perform that part of the procedure. He wasn't there when that part of the procedure was performed.
Plaintiff’s counsel moved for sanctions, arguing that the defense attorney had improperly coached the witness to answer a certain way. The trial judge agreed, stating: “By her interjection of her statement of evidence, that Dr. Driesman did not perform that part of the procedure and was not present when it was performed, defense counsel was . . . suggesting to the witness what she wanted him to say in response to plaintiff’s counsel’s question.” The court imposed sanctions on defense counsel.
To ensure full compliance with the rules, an attorney should keep objections short and to the point. The Committee Note to Rule 2-415 gives examples of concise, non-suggestive objections, which include: "objection, leading;" "objection, asked and answered;" and "objection, compound question." If an attorney believes a more detailed objection is necessary but could improperly coach or guide the witness, then any party can have the deponent excused during the making of the objection.
Given the complexity of the protocol governing objections, lawyers should periodically review the ground rules. Questions fly quickly during depositions, and attorneys can easily miss or bungle opportunities. Though they may be long and tedious, depositions often form the foundation upon which trials are won or lost, and a waived objection may allow damaging testimony into evidence.
John J. Lovejoy is an associate in the litigation department of Shapiro Sher Guinot & Sandler. Paul Mark Sandler, a partner at the firm, is the author Anatomy of a Trial: A Primer for Young Lawyers (MICPEL, 2008). They may be reached at email@example.com and firstname.lastname@example.org, respectively.