Interference! Tips for Making Proper Deposition Objections

May 24, 2024

Reading time: 4 minutes

Interference can happen a couple different ways on the baseball field – by the catcher reaching for a pitch and hitting the batter or their bat or by a baserunner impeding an infielder’s ability to make a play. Similarly, an attorney defending a deposition can interfere with their client’s testimony by inappropriately objecting during opposing counsel’s line of questioning. Objections must be used properly, or counsel

Although defending a deposition requires less preparation than taking a deposition, it is an important part of the litigation process and not one to take lightly. We have all probably encountered the lawyer who settles in at the deposition conference table and is either distracted by their email or appears to nod off while taking notes. On the other hand, you may have felt like your transcript was worthless after a deponent’s attorney used every objection in the book and seemingly coached their client throughout the entire deposition. So, what is the best approach to using objections in a pre-trial deposition setting?  Learning to appropriately object within the bounds of fair play is a skill that comes with experience and knowledge of your jurisdiction’s laws and rules. However, consider these general practice tips before you defend your next deposition: 

  • Refrain from cueing the deponent – Objections should not shape your client’s testimony in any way. For example, anything more than the standard, “Objection, compound question,” that directs the deponent to dates or documents or prompts them if you describe the legal basis for the objection, is out of bounds.
  • Do not direct the deponent to refrain from answering a question – In most jurisdictions, lawyers are prohibited from directing their client to refuse to answer a question unless it invades the attorney-client privilege. However, some states permit counsel to object for compliance with a court order or to protect a witness from an abusive line of questioning. If you anticipate that opposing counsel will inquire about topics meant to harass your client, consider filing a Motion for Protective Order prior to the deposition to limit this line of questioning.
  • Avoid mid-deposition conferences with your client – Conducting a conference during a deposition is governed by jurisdictional rules, so you need to know whether you are permitted to speak to your client during the course of the deposition. Typically, once the deposition has begun, the preparation period is over. And, even if a conference is permissible, you can expect counsel will note the conference occurred when you are back on the record.

Now that you have some guidance concerning what not to do when defending a deposition, let’s look at some appropriate objections, keeping in mind the importance of knowing the rules for objections in your jurisdiction:

  • Privilege – As referenced above, objections to privilege allow you to direct your client not to answer a question. Types of legal privilege include attorney-client privilege, spousal privilege, and doctor-patient privilege.  If opposing counsel asks a question that invades a protected, privileged communication, you can state “Objection, the question seeks privileged information,” and then instruct your client not to answer.
  • Form of the question – You can object to the form of the question if it is vague, confusing, or incorporates multiple questions.  For example, if opposing counsel asks multiple questions before giving your client an opportunity to answer, you can object to form.  Remember to specifically state your objection to the form, such as “Objection to form, counsel asked a compound question.”  This not only signals opposing counsel to break up their questions, it protects your client from offering inaccurate testimony.
  • Calls for a legal conclusion – Your client’s deposition was requested so they could testify about their knowledge and personal experience, not to provide legal conclusions. So, if opposing counsel asks whether the defendant owed them a duty of care, you can object by saying “Objection, calls for a legal conclusion.”  You can interject a similar objection for speculation if the question would cause your client to speculate about a particular event or circumstances. 
  • Mischaracterization of testimony – Be wary of attorneys who stick to their script when asking questions and don’t appear to listen to the deponent’s answers. Opposing counsel may misrepresent or misstate your client’s testimony from earlier in the deposition. A proper objection would be “Objection mischaracterization,” and then you can clarify the inaccuracy of the question. 

Federal Rule of Civil Procedure Rule 26(b)(1) permits counsel to pursue discovery of any nonprivileged matter that is relevant to the party’s claims or defenses. In other words, the rules of discovery are broader than the rules of evidence, so most deposition questions are fair game. However, don’t hesitate to call foul (read: object) if opposing counsel’s questions or question form are inappropriate. By reviewing proper objections prior to the deposition and preparing your client well, you can help ensure their accurate testimony is captured, and they knock it out of the park. 

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Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by the use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability, or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to [email protected].

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