Deposition Objections

10/8/2018 Deposition Objections: A Comprehensive Cheat Sheet + FAQs
Who We Are 
Personal Injury  (888)

992-
Family Law  3386
DEPOSITION OBJECTIONS: A Criminal Defense 

COMPREHENSIVE CHEAT SHEET + FAQS
October 3, 2016 // by Christian Denmon (https://denmon.lawyer/author/denmon/)
The Rules And Procedures Controlling Depositions Are Neither

Technical Nor Complex.
Yet many lawyers either don’t understand these rules. And many lawyers who do understand the rules of the
game are quick to take advantage of an adversary who does not.
This page is a cheat sheet that answers those terrible questions that tend to pop up in the middle of the
deposition.
For the experienced attorney who may not need to review the entire article, I have put together a pdf
checklist (https://denmon.lawyer/wp-content/uploads/2016/10/checklist-6.pdf) that you can download
here.
Staying fresh and ready on the rules of the deposition outside of the deposition room will enable you to focus
more attention on getting information from the witness while in the Courtroom.
Is A Deposition Just A Sworn Statement?

A Deposition is simply a compulsory sworn statement (http://thelawdictionary.org/deposition/) (by
subpoena or Court Order), reduced to writing. Depositions are taken as part of the discovery process.
Depositions are often taken near the end of the discovery process, when the attorney has the bene t of
document disclosure and interrogatories to help prepare for the witnesses deposition. 
The compulsory nature of a deposition means the witness does not have a choice in the matter. Every
jurisdiction has rules that spell out the how and when the deposition will take place.
https://denmon.lawyer/depositions-cheat-sheet/ 1/14
A simple sworn statement, on the other hand, is not compulsory. You are getting the witness to talk to you,
outside of the con nes of the rules of the Court. Think a witness interview where you just happen to have a
court reporter along to notate the facts. Unlike a deposition, all you need is a willing witness and a court
reporter to take an oral deposition statement.
Is The Deposition Set Up Correctly?

For the Deposition to be proper, make sure that:
1. The Witness is under subpoena
2. The other side has been given reasonable written

notice. The Notice for the deposition must have 1. the
time, 2. the place, and 3. The name and address of the
person being deposed if know. Be sure to check your
jurisdiction for local rules on what is reasonable notice
and how you need to go about scheduling matters with
opposing counsel, and
3. There is a court reporter to swear the witness

under oath and reduce the oral testimony to writing.
Although formality aside, the parties could technically stipulate to the removal of the court reporter. And 
even the admissibility of the deposition absent the witness being sworn. Stipulations, however, take two to
tango.
Who Can Attend The Deposition?

In civil cases, anybody can come.
Absent a protective order from the Court, experts, third parties, and even other witnesses can attend a
deposition. Deposition is a civil procedure with open proceedings, just like trial. They are not, by default,
closed to the public.
Most jurisdictions have more restrictive rules in Criminal Depositions. For example, Florida does not allow
the criminal defendant to attend a deposition without permission from the Court.
“Any Third Party Can Attend A Civil Deposition, Even Potential

Witnesses, Absent A Court Order Or Stipulated Agreement To The
Contrary.”
However, unlike a trial, you cannot simply “invoke the rule” of sequestration to keep a witness out of the
room.
Of course, most depositions take place in private of ces or conference rooms. Therefore, most outsiders
could be kept out of the deposition by the owner of the conference room. If a third party comes to a
deposition, the attorney needs to look strategically at the situation.
The attorney could terminate the deposition and seek a protective order from the Judge.
Alternatively, the attorney could announce on the record that the third party witness is sitting in on the
deposition, and use it to impeach both the deposition witness and the third party witness.
Likewise, if the third party attending the deposition is a newspaper reporter, the uncomfortablenes that the
reporter makes the witness feel could be used to great tactical advantage.
Can I Depose A Witness Over The Telephone?
Yes. 
However, you will need to have a notary or a court reporter that is in the room with the witness.
That means if the court reporter is with you (and not in the remote location with the witness), then your
witness will need to have a notary available to swear them in. According to the National Court Report
Association only 18 states have any rules or regulations concerning telephonic depositions
(http://www.ncra.org/Government/content.cfm?ItemNumber=9429). These states require the witness to
be sworn in while in the same room as the court reporter or a notary.
As for the other 32 states, the NCRA recommends that court reporters still do the same thing and not swear
in a witness over the phone.
While technically the lawyers could stipulate to swearing the witness in over the phone, in this case you need
three to tango (2 lawyers and a court report), and some Court reporters might feel it is a violation of their
ethic to do so, and not take the deposition.
Can I Depose A Witness With Skype Or Mobile Videoconferencing

If you need to depose a witness remotely, skype or other mobile videoconferencing provides another option.
Video conferencing (and recording) gives you the opportunity to examine the witness while viewing the
witness visually. This also allows the recording of the witness so the Jury can see everything in the future.
However, with both telephonic and mobile video depositions you will need to have a plan for the reviewing
and marking of exhibits. There are companies like e-depoze (http://edepoze.com/) that have software
packages that enable real time use of exhibits through i-pads and tablets.
What Questions Are Fair Game?

Before you enter a deposition you need to know what questioning is fair game, and what question is
improper.
“Relevant Information Need Not Be Admissible At The Trial Of The

Discovery Appears Reasonably Calculated To Lead To The Discovery Of
Admissible Evidence”
-F.R.C.P 26 
Depositions are a discovery devise. If the question asked might reasonably lead to the discovery of
admissible evidence, then the question is fair game!
Generally speaking, the rules of evidence generally limit the use of information at trial, not the
acquisition of the information at deposition.
Defending The Deposition: How Do I Prepare My Witness?

If possible, you need to meet with your witness before the deposition. As an advocate, it is important that
your witness is thoroughly prepared for the deposition. As a counselor (assuming the witness is your client)
you want to help put your client at ease and feel comfortable about a scary event.
Every lawyer has his or her own “rules” that they give the client, but they all have pretty much say the same
thing:
 Be short and sweet
 Be Honest
 Think before you answer
 Keep Calm and be respectful
So set your meeting with your client and explain to them what they will expect. Make sure any relevant
af davits, interrogatories, or documents produced by your client are available. Leave your client in the
conference room and let him go over all the documents that he might be impeached with the next day. And
go over the rules with your client.
Can I Seek A Protective Order?

If you are defending a deposition and you think the opposing attorney has crossed the line, you need to
terminate the questioning and seek a protective order from the Judge assigned to the case.
However, the Judge will only grant your request for a protective order if you can show annoyance,
embarrassment, oppression, or undue burden or expense on a party.

If you do move for a protective order and you lose, your client might be on the hook for costs, but only if your
motion was unreasonable.
Note that at least one Federal Court Decision out of Alabama (http://www.almd.uscourts.gov/) stated that
excluding a witness from a deposition because the witness would be exposed to the deponent’s deposition
testimony leading to collusion or testimony fabrication did not justify the granting of a protective Order.
Can I Instruct The Witness Not To Answer?

An attorney has no right to instruct a third party witness, especially an expert witness, to not answer a
question. An attorney can instruct his or her own witness not to answer a question only on the basis of
invoking a privilege.
What Are My Proper Objections?

There are only three proper objections in a deposition:
OBJECTION! RELEVANCY:
You can object to the relevancy of a line of questions.
Sometimes, opposing counsel is just “badgering”the witness,
or wasting time. You can object to the relevance of the
question. But remember: relevancy at a deposition is
anything that is reasonably calculated to lead to admissible
evidence. That’s a pretty low standard!
OBJECTION! FORM:
You can object to the form of a question in deposition.
For certain form questions, if you do not objection at the deposition, it is waived at future hearings. So speak
now, or forever hold your objection.
An Attorney objecting to the form of a question is asking the other attorney to clarify a speci c point.
Common examples of objections as to form include: lack of authentication, compound, asked and answered,
ambiguous then object to the form of the question.

Leading is also an objection to form, but this does not apply to hostile witnesses. In most jurisdictions, you
simply say the following: “Objection. Form”.
Other jurisdictions will want you to clarify the type of form objection, so you would say, “Objection. Form.
Compound”. In any case, don’t be a goon and ramble speaking objections (see below).
OBJECTION! PRIVILEGE:
Finally, you can object for privilege and help your client invoke the privilege. This is also the only time you can
in anyway instruct your witness not to answer. Do so not by stating , “I am instructing my client to not
answer!”, but by stating (or having your client state), “I am invoking my XX privilege. Be sure to check your
State’s evidence rules for all privileges, but the two biggies are the 5th Amendment and the Attorney-Client
privilege.
Even If I Can Objection, Should I Object?

The key consideration of whether you should object or not is if you waive any objection at trial by not
opening your mouth at the deposition.
“An Objection To The Form Of The Question Is Waived Unless Made

During The Objection
-F.R.C.P. 32(d)(3)(B)
If you fail to object to the form of the question or answers, the oath or af rmation of the witness, or the
conduct of the party at the deposition, then you waive the same objection in a future trial. In effect, if the
improper statements could be corrected on the spot, then you need to object on the spot, or the Court will
gure you do not care and waive the future objection. Objections, such as hearsay, competency of the
witness, ect. ect., are not waived, and are preserved until the trial.
Prosecuting The Objection: Can I Use Leading Questions?

As a deposition is a discovery device, we should always ask open ended questions, right? Not exactly. When
examining hostile witnesses (ie. most witnesses you are deposing as the deposition is compelled), there is
certainly a time and place for the open ended discovery questions in a depositions (“And then what
happened? And then what happened?).
“Traditional Deposition Methods Employing Only Open-Ended 

Questions Do Not Train Well Or Produce The Most Usable Results”
-Cross Examination, Science and Techniques, Posner & Dodd
But be prepared to utilize leading questions in the deposition to build your case. You can speci cally use
leading questions:
1. To establish the facts you want to use at trial: You want to come out of the deposition of an adverse
witness witness with straight, speci c answers. This will allow you to better prepare for trial or subsequent
settlement negotiations. You don’t want to be reviewing that muddle mush of a deposition prior to trial and
say, “I can’t use this!”.
2. To Teach the Witness How to Behave: The deposition is often the witnesses rst crack at the litigation
game. Teach them early how to behave, and you can reap rewards at the trial. Criminal defense lawyers will
regale others with stories of cops who were scolded soundly at a deposition, hearing, or trial, and was always
“obedient” with that attorney at every trial thereafter.
3. To Teach Yourself Cross-Examination: The reality is that lawyers today will sit in many many more hours
of depositions than trials. But great cross-examination takes practice. Work on your cross examination skills
during your depositions!
Any Tips On Handling An Unresponsive Witness?

The unresponsive witness is a hostile witness.
Use leading questions.
You need to teach the witness how to behave. Consider using the following tactics:
Ask. Repeat. Repeat:
If the Witness does not answer your leading question, ask again exactly the same way, only much more
slowly.
Q. “Ms. Jones, you signed under oath this 2012 tax return”
A. “I don’t really know documents you are talking about. I have seen so many document today” 
Q. (Very slowly)”Ms. Jones, you signed under oath this 2012 tax return” (Repeated question. It has not been
answered appropriately)
A. “Yes”.
ASK, REPEAT. REVERSE

This builds on the technique above. Point out the silliness in the witness by asking the reverse question.
Q. “Ms. Jones, you signed under oath this 2012 tax 

return”
A. “I don’t really know documents you are talking

about. I have seen so many document today”
Q. “Ms. Jones, you signed under oath this 2012 tax

return” (Repeated question. It has not been answered
appropriately)
A. ” Blah Blah Blah”
Q. (Very slowly) “Ms. Jones, you did not sign under
oath this 2012 tax return?”
A. ” No, no I didn’t say that”
Q. So you did sign this tax return”
SHORTENING THE QUESTION

Q. ” You had a glass of whiskey before the ght began”
A. “Blah blah blah”
Q. “Glass. Whiskey”
A. “Blah Blah Blah” 

Q. “Whiskey?”
A. Yes
The Body Turn
Sometimes the witness just sucks. The witness is despicable, and insists on being unresponsive during your
deposition.
In such a case, utilize the body turn.
When the Witness rambles uncontrollable, slowly turn your body away from the witness. Don’t stop the
witness from rambling, just turn your body. The effect is amazing.
Talk to The Hand
Similar the the body turn, there is a time and a place for the hand stop.
When the witness is wholly unresponsive, put your hand out like a crossing guard.
Try it.
What About The Objecting Opposing Counsel?

Speaking Objections: Way too often Attorneys make improper speaking objections throughout their
witnesses’ deposition. Speaking objections are an attempt to in uence the testimony of the witness, to
throw off the game of the questioning attorney, or both.
“Lawyers Are Prohibited From Making Comments On And Off The

Record Which May Limit A Witness’s Ability To Answer An
Appropriate Question:
-Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).
Speaking objections and other attempts to coach the witness are improper and subject for sanctions. 
If the other attorney is being a jerk, be sure to:
1. Object and point out the behavior on the record: Remember to preserve your objection on the record.
If the attorneys behavior includes physical or inaudible cues, you will need to articulate it for the Court
reporter and the written record.
2. Go off the record and demand the offending attorney stop acting like a jerk. Many times, the attorney
is just seeing what he can get away with. Show the attorney that you know the rules. Be rm. Let him know
that if you have to stop the deposition, you will seek sanctions.
3. Terminate the deposition and seek sanctions: If you cannot get the
other attorney to act reasonable and the behavior is affecting your ability
to take the deposition, terminate the deposition without delay, and set a
Motion to Compel or Motion for Sanctions without delay.
Be sure to seek attorneys fees for the wasted deposition and motion
needed to get a fair deposition. Judges have little patience with jerk
attorneys who intentionally frustrate the discovery process.
Should I Order The Transcript?

Know if you are going to be ordering the depositions. If you are taking the
deposition, it is your Court reporter, so you will decide to order or not.
Know your Court reporter. That way, you know who you are dealing with.
You can order a copy for yourself and force opposing counsel to order a copy for themselves.
Alternatively, you can both order a copy and agree to give copies to each other. The Court Reporter is under
no obligation to give both parties a copy of the deposition unless ordered by both parties, but there is
nothing stopping the parties to do it among themselves.

And if money is an issue (think domestic cases), then the Court reporter may be happier to sell two copies (or
one) than none at all. Similarly, if you are ling the deposition, then you must send a copy (or make a copy
available) to the other party.
Some attorneys mistakenly believe that they can le a deposition but force you to buy your own copy. The
law is clear: If you le something with the clerk you need to make it available to the other party.
What Is The Errata Sheet?

At the end of a witness’ deposition, most attorneys tell the witness they have the right to “review” what was
written. This is technically incorrect. The witness has the right to amend, correct, or supplement the
deposition. This can be done on the Errata Sheet.
The witness can “waive” this right should he or she so wish. It is up to the witness, not the attorney.
How Should I Dress At The Deposition?
Look, you are a lawyer. That’s awesome. But you need to

look the part.
Too many lawyers show up to depositions in jeans and polo

shirts. It is unprofessional. Consider that this might be the
rst (if not only) experience with the legal system that the
witness you are deposing will experience.civi
Do your part to promote the perception of the lawyers as a

professional group.

Deposition Objections

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Deposition Objections

Hochgeladen von

Copyright:

Verfügbare Formate

10/8/2018 Deposition Objections: A Comprehensive Cheat Sheet + FAQs

Personal Injury  (888)

DEPOSITION OBJECTIONS: A Criminal Defense 

The Rules And Procedures Controlling Depositions Are Neither

Is A Deposition Just A Sworn Statement?

Is The Deposition Set Up Correctly?

1. The Witness is under subpoena

2. The other side has been given reasonable written

3. There is a court reporter to swear the witness

Who Can Attend The Deposition?

“Any Third Party Can Attend A Civil Deposition, Even Potential

Can I Depose A Witness Over The Telephone?

Can I Depose A Witness With Skype Or Mobile Videoconferencing

What Questions Are Fair Game?

“Relevant Information Need Not Be Admissible At The Trial Of The

Defending The Deposition: How Do I Prepare My Witness?

 Be short and sweet

 Think before you answer

 Keep Calm and be respectful

Can I Seek A Protective Order?

Can I Instruct The Witness Not To Answer?

What Are My Proper Objections?

Even If I Can Objection, Should I Object?

“An Objection To The Form Of The Question Is Waived Unless Made

Prosecuting The Objection: Can I Use Leading Questions?

“Traditional Deposition Methods Employing Only Open-Ended 

Any Tips On Handling An Unresponsive Witness?

Use leading questions.

Ask. Repeat. Repeat:

ASK, REPEAT. REVERSE

Q. “Ms. Jones, you signed under oath this 2012 tax 

A. “I don’t really know documents you are talking

Q. “Ms. Jones, you signed under oath this 2012 tax

A. ” Blah Blah Blah”

A. ” No, no I didn’t say that”

Q. So you did sign this tax return”

SHORTENING THE QUESTION

A. “Blah blah blah”

A. “Blah Blah Blah” 

The Body Turn

In such a case, utilize the body turn.

Talk to The Hand

What About The Objecting Opposing Counsel?

“Lawyers Are Prohibited From Making Comments On And Off The

Should I Order The Transcript?

What Is The Errata Sheet?

How Should I Dress At The Deposition?

Look, you are a lawyer. That’s awesome. But you need to

Too many lawyers show up to depositions in jeans and polo

Do your part to promote the perception of the lawyers as a

Das könnte Ihnen auch gefallen