A deposition is a powerful litigation tool for several reasons. Because a deposition is sworn testimony, it can be used to prove perjury if a witness tries to change his or her testimony at trial. A deposition can also be used to discover additional evidence to use at trial or discover information that can lead to admissible evidence.
Even though the same rules do not apply to depositions as to testimony given during a hearing or during a trial, attorneys can and do object to some questions during a deposition. Learning the difference between objections that can be made during a deposition and objections that are improper in a deposition is essential if an attorney wants to protect his or her client and/or witness during a deposition.
Objections You Can Make in a Deposition
Many of the objections that apply in court do not apply in a deposition; however, some objections are acceptable in a deposition.
- Asked & Answered Objections – If the attorney for the opposing party continues to ask questions that are simply reworded, the attorney may be attempting to get the witness to contradict a previous statement. Asked and answered objections are proper in a trial and in a deposition.
- Harassment of the Witness – If your witness is being attacked or harassed, you have the right to object regardless of whether you are in a hearing or in a deposition. If the behavior continues, you have the right to end the deposition.
- Privilege – If privilege is raised, instruct your client not to answer any questions that provide privileged information. End the deposition if opposing counsel persists in this line of questioning. It is important to raise the issue of privilege because you waive the right to privilege if it is not raised as soon as a question is asked. Privilege objections apply to any form of privilege such as physician-patient and attorney-client.
- Form of the Question Objections – If you do not make this objection during the deposition, it is considered waived. You can object to questions that are compound or questions that call for speculation. Compound questions can be a problem because if the deponent answers “no,” which part of the question does the answer apply to or does it apply to the entire question. An attorney should object to any question that calls for speculation.
- Calls for a Legal Conclusion – Only a witness who is an attorney can make a legal conclusion and this may be a gray area if the question is about an area of the law that the attorney does not practice. Typically, a witness should not be required to make a legal conclusion even in a deposition.
Objections Not Permitted in a Deposition
The following objections may be valid in a courtroom but they are not valid in a deposition.
- Hearsay Objections – Hearsay in a trial is inadmissible because the opposing counsel cannot cross-examine the declarant. In a deposition, much of the information may be in the form of hearsay. The attorney is searching for information that may lead to admissible evidence through the deposition or testimony of the source of the information.
- Objections Related to Opinions – In a trial, the attorney must lay a foundation that the witness is an expert if the attorney wants the witness’s opinion to be admissible. However, this is not the case in a deposition. The attorney can ask for an opinion and ask the witness to explain how he or she arrived at this opinion. This line of questioning is often used to obtain additional information that can lead to admissible evidence.
- Assumes facts not in evidence – Again, a deposition is not a trial. A witness can answer a question such as “If you knew ‘this,” would it have changed what you did or how you reacted?” However, if the answer requires the witness to speculate, the attorney should object to the question. This type of objection borders on a gray area.
Possible Gray Areas
In some situations, an objection may be proper but in other situations the same exception may not be proper. Experience is often the best teacher an attorney can have to learn when and when not to make objections during a deposition that are related to gray areas.
- Irrelevant – In court, the judge decides what is relevant and irrelevant when this objection is made. In a deposition, there is no one to make this decision. An objection for irrelevance is only acceptable if the question is clearly way off topic. In the case where the answer may lead to admissible evidence, irrelevant objections are not proper in depositions.
- Confusing Questions – While it may not be proper to ask for clarification, a question may be confusing to the point that the deponent cannot understand what is being asked. If the deponent cannot answer the question because it is too confusing to understand, an objection may be proper.
Preparing Your Client For a Deposition
Preparing your client for a deposition is essential. You need to explain to your client that information in a deposition may not be admissible in court but the attorney is looking for information that may lead to admissible evidence. Because of this fact, your client may not appreciate some of the questions being asked and your client may not understand why you do not object to some of the questions. To prepare your client, tell your client:
- Do not get emotional, upset, or let your body language give away information.
- Do not guess or speculate. Say “I don’t know” if you truly do not know.
- If you do not understand a question, ask the attorney to rephrase the question.
- Keep answers simple and only answer the question that is asked. Never volunteer information.
- Do not ask your attorney for help.
- If you need a break, ask for one. Do not discuss anything during the break with anyone other than your attorney.
The key to a successful deposition is preparation. Prepare your client if your client is being deposed. If you are taking the deposition, review all evidence and material related to the case to draft a set of questions and follow-up questions. Listen to the witness’s answers and think about follow-up questions as the deposition progresses. A simple answer in a deposition can lead to powerful evidence that can change the course of the case.
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