January 22, 2009


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?

Plaintiff: Yes.

Defendant’s counsel: And what color was the traffic light?

Plaintiff: Green.

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.

3. Privilege

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.

4. Grounds

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 jjlovejoy@shapirosher.com and pms@shapirosher.com, respectively.

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March 18, 2008

Deposition Preparation, Part 4: Twelve Commandments for Deponents

If you represent the witness, you have to prepare yourself and your client.

To begin with, when appropriate take time to explain the case as a whole and the various theories of all parties to the witness. A full explanation will help the deponent understand what the case is about and respond to the questions in an intelligent and comfortable manner. (Beware that what you say may be discoverable during the deposition by opposing counsel, particularly if the witness is not the client. For example, you could inadvertently waive work-product protection by sharing your notes with a witness.)

Secondly, explain in detail the subjects on which the witness is most likely to be questioned. In that vein, be sure to give and discuss with the witness documents he is likely to see, paying close attention to those he may have authored or received.

During the prep meetings, encourage him to ask questions about what he may expect. It’s also a good idea to engage the witness in a ‘dry run’ or practice session. For the deposition itself there are many pointers to offer your client, though here are twelve commandments that come to mind:

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March 14, 2008

Deposition Preparation, Part 3: Organization

Once the goals of the deposition are selected, the next step is to consider organization of the questioning. Because you are not at trial, you are not necessarily putting on a rhetorical show for an audience. Some pointers that relate to direct or cross examination, such as those concerning body language and delivery, are not as relevant here.

Still, in a deposition you are, even if tangentially, developing a case. You want to elicit favorable testimony, and to do so requires strategic questioning. It’s possible the testimony could come before the jurors later on, so you want it to read to your liking. Try to begin and close with strong testimony. It’s often mentioned, but worth repeating: people remember best that which they hear first and last. This principal has always helped me organize witness examinations and depositions, as well as opening statements and closing arguments and everything in between.

Unlike a direct examination at trial, however, a deposition need not be quite as selective. You may want to ‘cover the waterfront’ and ask a lot of questions as you try to turn up any valuable information from the witness.

To help yourself keep all this in your head, consider preparing a deposition notebook that contains an outline of what you want to cover, technical questions written verbatim, and reminders for follow-up queries. Organizing documents in advance, pre-remarking them and having copies for other counsel is also helpful.

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March 14, 2008

Deposition Preparation, Part 2: Depositions and Rules of Evidence

If you need to, remind yourself of the rules of evidence before deposition day. The formal rules of evidence in force at trial are much relaxed in a deposition context. The hearsay rule, for instance, doesn’t apply in a deposition.

Often during the deposition the witness’s counsel will object to a question to protect his or her client’s interests at trial. Nevertheless, the witness will be told by the lawyer interposing the objection to answer the question. For example, “What did the President tell you about his plan?” “Objection, hearsay, but you can answer”, might be the lawyer’s response to a question the answer to which counsel believes would be improper during trial but not improper for the deposition. Whether the answer is admissible at trial is reserved for a later day.

There are limited occasions when it is proper to refuse to answer a question during a deposition. These occasions arise when the examiner is improperly probing for information that is protected by a recognized privilege under the law, such as the attorney-client privilege or the work product doctrine. The privilege against self-incrimination is another important privilege. Sometimes these privileges are inadvertently waived. For example, counsel may have previously shown his or her personal notes relating to trial strategy in preparing the witness for deposition. Under such circumstances the objection posed to the examiner seeking to learn about those notes may have been waived.

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March 13, 2008

Deposition Preparation: Why Depose a Witness

Aren’t depositions fun? Hour after hour of barbed questioning can make for a rather treacherous afternoon for the hapless witness. That’s not to mention the challenges to his professional integrity, expertise and character he may well have to endure.

No matter how unpleasant a deposition promises to be, a lawyer can take steps to prepare both himself and her witness. Though a deposition hasn’t the pomp and circumstance of a trial, an unwary deponent and attorney can lose their case if they fail to ready themselves.

Each deposition considered must be analyzed in terms of purpose. Is this deposition for purposes of summary judgment? Do I want to lock the witness into a particular position? Am I simply seeking to discover what knowledge the witness possesses about important events in the case? You may simply be curious about the substance of what the witness’ testimony would be if s/he were to be called to testify at trial. If the witness is an expert, you will want to learn not only the expert’s opinion about relevant issues, but also the basis of this opinion, and the qualifications to render it.

Other motivations for deposing a witness include:

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