Question

On what basis can attorneys raise objections in depositions?

Answer 1

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 where one 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.

• Possible Areas

  In some situations, an objection may be proper but in other situations the same exception may not be proper. Such situations are as follows

• 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