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Objections at Depositions
Thursday, September 30 2004 @ 11:38 PM EDT

You likely noticed, in the article just prior to this one, that when IBM's attorney asked Otis Wilson a question at his deposition, it frequently resulted in SCO's attorney calling out, Objection. Why? The witness answers the questions anyway, and there is no judge there to rule on anything, so what is the explanation?

I looked up some information on depositions in "New York Practice", by David D. Siegel, and this is what I learned:

1. Unlike other forms of disclosure, there is a general policy against using depositions at trial, in favor of having the person show up then and testify in person, so the jury can observe their demeanor;
2. One purpose of a deposition is to inform the other side of what your contentions are;
3. The deposition can be used to impeach a witness at trial, meaning you can point out differences between what the person said at the deposition with what he or she says at trial;
4. A deposition of any party, as opposed to third-party witness, may be used to establish facts at trial -- the plaintiff can read what the defendant said at a deposition and vice versa;
5. Before the depostion of any other party can be used as evidence in chief, a proper foundation must be laid, meaning there has to be a good reason that the statute sets out for doing so. For example, if a deposed witness dies before trial, or can't be found anywhere, you can then use the deposition as evidence;
6. The deposition is taken before a notary public, usually with a stenographer present, and nowadays often with someone to video the proceedings. Judges can, of course, preside, but manpower needs make that rare indeed;
7. The attorney can ask anything relevant to the case, and it's no use talking about a fishing expedition, because pretty much anything is fair game, the whole point of a deposition being to go fishing;
8. Objections, while frequent, don't stop the proceedings in most cases. If there is an objection and the witness's counsel tells him not to answer, the other side can make this the subject of a motion for a disclosure order. If there happens to be a judge nearby, he can rule on whether a question is acceptable during the course of the deposition;
9. The witness's attorney may cross-examine the witness, and in so doing can introduce new information. Anyone who thinks the deposition might be used against him can also cross examine.

Why all the regulations? To make sure a party can't make the person his witness, just by deposing him or her. But what about all the objections? What is that for? Siegel says this:

"To encourage every party to be relaxed and open at the deposition, insofar as any law can bring this off, it is provided that no objection is waived by not being made at the session. Later, if and when the particular question is read at the trial, any lawyer can object to it, and the objection at that time will be disposed of under the rules of evidence even though the question was answered without objection in the deposition. If the applicable rule bars the answer, it will be kept from the jury regardless of the fact that the answer stands forth in full flower on the folios of the transcript. The only exception is an objection to the form of the question. Here the theory is that the prompt putting of the objection will enable the questioner to cure it with a mere rephrasing. Mere form objections must therefore be noted or they are waived.

"The trial lawyer is still cautious at the deposition. The fact that he need not make substantial objections does not mean that he may not. If he does, the issue is usually resolved, whether by an immediate ruling by a nearby judge or on a later motion to compel disclosure, by reference to the evidence rules just as they would be used at the trial. The courts are especially impatient with petty objections at this stage, however. It has been suggested that the lawyer should restrictg his deposition objections to only those questions which are palpably irrelevant or which violate some legal privilege or constitutional right. Perhaps the rule of thumb for the lawyer seeking an ideal stance is to object to only those questions which, in addition to invoking some exclusionary evidenciary rule, elicit data which he does not want the opposing side -- not just the jury -- to know at all."

In trying to match this with the deposition, I still didn't know what the objections were all about. Was the SCO side objecting so later they can prevent the jury from hearing this testimony? Or was it about rattling the witness? I realized that to figure that out, you would need to know what the various objections mean. What does it mean when he says, Objection, vague, compound, lacks foundation? The book didn't explain that part, so I asked AllParadox, our resident retired attorney, if he would please explain.


Objections at Deposition,
by AllParadox

Why are they doing this, what are they allowed to do, and is it all really worth it?

Let's start with a review of objections in general, for those who have not grown up on the TV show "Perry Mason".

Context: an objection is a specific legal procedure, executed in the context of a contested hearing, e.g. a jury trial. Usually, the hearings are being recorded by the Court's regular certified court reporter. If a trial judge errs, the court reporter's transcript, plus the admitted exhibits, become the record that may be reviewed by a court of appeals (up to and including the U.S. Supreme Court). The words that describe handling of objections are "sustained" and "overruled", corresponding to "granted" and "denied" used when discussing motions. I.e. objections are sustained, while motions are granted, but the concepts are identical: you won.

Objections are the way that attorneys prevent improper procedure and conduct during a trial or deposition. Ojections may be raised for all manner of errors. I am going to limit my discussion here to those errors usually committed during the interrogation of a witness, because those are the ones that are interesting in the context of a deposition.

A most serious statement: if nobody objects, you may do it. Each party may have an attorney. The attorney knows when and how to make and preserve objections. If the attorneys agree, and the judge is not offended, you can do the most outrageous and outlandish things, and I have.

Cooperation is not necessary, however. Incompetence will often do quite nicely. If you are facing the death penalty in Texas, and your attorney goes to sleep during the trial, he cannot object. If improper evidence is admitted during his nap, Texas will kill you anyway.

Part of it is knowing how to make an adequate record. The attorney must make such a clear description in the record that there is an adequate basis for the Court of Appeals to support the attorney's position. I will save the detailed procedural description of "record making" for another time.

For a corporation, there are two interesting versions of witness to be deposed: your own employees, and strangers.

For your own employees, certain information should be kept confidential. For example, "What has your attorney said to you today?" violates attorney-work-product rules, and should be exempt.

Whether employee or stranger, other things can still be objectionable. Hearsay is still hearsay, speculation is still just guessing, and nasty, offensive conduct by the attorney is unacceptable. "Are you a pedophile?" better have a rock solid foundation, or else the Judge himself will refer the lawyer to the Disciplinary Committee.

The procedural situation in the deposition room is complicated. The purpose of the deposition is to discover useable evidence. The rules for disovery say that anything that might lead to useable evidence is allowed. At the same time, the purpose of the objection is to limit improprieties, and to preserve a record for appeal.

The solution is a compromise. During the deposition, the attorneys must make proper, timely, accurate objections. He must object to every improper question every time, and on every improper ground. Many times, the other attorney will state for the record in the deposition that he or she consents to a "continuing objection". A continuing objection to something like a connected series of hearsay statements allows the questioner to get a flow in the transcript, and the objector can be sure that the objection is presumed to have been properly raised for every question. The objection will be considered to be "preserved".

Also, "subject to the objection" is frequently used. After an objection is raised, the questioner will turn back to the witness and say: "Subject to the objection, what is your answer to the last question?" This allows both for discovery to proceed while protecting objections in the record. Hearsay is a poor way to make a case, but a powerful way to root out information.

Before a transcript is admitted into evidence, the attorneys will have a hearing on the record with the judge. They will go through the transcript, and the attorneys must restate any objections they wish to preserve. Any ojections they forgot to make have already been lost. Lawyers refer to them as "waived". The Judge rules on the re-stated objections. Objectionable sections are blacked out to prevent the jury from reading them, and copies of the censored trascript are prepared for all parties.

When attorneys anticipate that there will be problems during a depostion, a special master may be requested. Some firms are notorious for refusing to allow a witness to speak, citing frivolous objections. When you take the objection to the judge, he rules against them. You reschedule the deposition, and start over. They make exactly the same objection, and refuse to allow the witness to speak. It never seems to end. One solution is to file a motion asking the judge to appoint a special master for the deposition. If the judge agrees, he will appoint someone. Often these are retired lawyers that also preside over things like arbitrations. The special master sits in the deposition room. If an objection is raised, the special master is empowered to rule on it immediately. The parties must pay the expense for the special master.

Another preemptive step is to file a motion for a protective order. If a key employee is being deposed, and that person knows a lot about things that really should not be part of the lawsuit, the attorneys can file for a protective order limiting the inquiry to proper areas, and for confidential information to be sealed.

To give a list of all objections that might come up in a deposition would be a course on evidence. What follows is a short list of common deposition objections, a very brief description of what they mean, and perhaps a comment. Note that to be timely, the objection must be made at the end of the question, but before the answer is given. When the witness starts the answer before the question ends, things can get dicey.

Question calls for hearsay: literally, what did someone else, not the witness, say. This includes written statements as well. There are so many exceptions, some extremely technical, to the hearsay rule, that it almost no longer exists. Still, failure to object waives the objection.

Question calls for speculation: non-expert witnesses are to testify about what they know, and not to guess at the answer.

Question calls for expert opinion, and witness is not an expert: an expert opinion is speculation, so the above objection could also apply. Before expert opinion testimony is admissable, the expert must be "qualified". An expert is "qualified" by giving testimony that supports a conclusion that he is really an expert.

E.g.: qualification of a plumber (yes, plumbers may be experts)
Q: Are you a plumber by trade? A: Yes.
Q: Are you a licensed plumber? A: Yes.
Q: What is your level? A: I am a Master Plumber
Q: When did you become a Master Plumber? A: May 27, 1985
Q: Approximately how many residential plumbing installation projects have you worked on since becoming an apprentice plumber? A: More than five thousand.
Q: Are you familiar with the BOCA code? A: I better be, I live by it.
Q: So you are familiar with the BOCA code? A: Yes, extremely familiar
Q: Did you examine the plumbing installation at ...
Q: Therefore, in your professional, expert, opinion as a plumber, was the plumbing installed in conformance to the BOCA code at that residence?
Other Attorney: Objection. Calls for expert opinion.

Note that even though the witness above is pretty clearly experienced as an expert plumber, opposing counsel objected, just to preserve the objection. Some jurisdictions may still require a formally proper hypothetical question to be asked, but this is required less and less.

Question calls for attorney-work-product: lawyers have to do their own work. No fair asking what opposing counsel has been discussing. Usually, witness is not allowed to answer. Often seen waived in the following exchange:

Q: Has this attorney told you to say anything?
A: He sure did. He told me to tell the truth.

Question calls for priveleged information: Priest, attorney, physician, spouse, may be priveleged by statute from answering the question. Usually witness is not allowed to answer.

Question calls for immaterial or irrelevant answer: Perry Mason's favorite. Rarely used in real courtrooms because immaterial questions usually get irrelevant and non-prejudicial answers, so one or two such questions cost nothing and cause no problems.

Question has been asked and answered: the witness may be required to answer a question. Once the question has been answered, the witness should not be harassed by being asked the same question again. Usually, indicates either an aggressive questioner with a neophyte opponent, or else a questioner that is unprepared, typically because he or she received an earlier unexpected response.

Question is vague: the purpose of depositions is to find information. Vague questions allow witnesses to give poor answers, or to volunteer information that should not be part of the record because it is objectionable on other grounds. This protects the attorney and the record when other objectionable information comes in, and allows a post-answer objection to have effect.

Question calls for legal conclusion: three persons in the courtroom may make legal conclusions, i.e. say what the law is; the judge, plaintiff's counsel, and defendant's counsel. The line gets a little fuzzy when dealing with contract negotiations. Then, the intent of the negotiator, though a legal conclusion, may still be relevant.

Question mischaracterizes ... : questions should accurately reflect prior statements. Questions that seriously misstate a description of another statement or document invite errors.

Question is leading: a leading question suggests the answer. "You are a Master Plumber, aren't you?" is a leading question. Leading questions are allowed in some places and not others. Generally, cross-examiners may ask leading questions, anyone may ask leading questions of hostile witnesses, and leading questions are usually allowed to quickly direct a witness to a specific time and incident before open-ended questions are required.

Question is compound: ask one question at a time, not two at once. A compound question may allow a misleading answer.

Question lacks proper foundation: before a witness answers, there should be some evidence in the record that the witness had an opportunity to see the incident, and recall it. Otherwise, there is a serious risk that the witness will give information received from someone else; hearsay.

Question calls for a free narrative: attorneys ask specific questions, witnesses give specific answers. "Tell us what you know" is an invitation to an evidentiary disaster.

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