Be Ready to Pounce on Objections in a Deposition

deposition_83017290Just as you should know what objections to make in a deposition, you need to anticipate opposing counsel’s objections and know how to respond to them.

Keep in mind that opposing counsel must object to any error or irregularity in a question that might be cured if promptly brought to your attention, or risk waiving the objection. So, be prepared and know these objections are coming your way.

Here are three common objections to anticipate in a deposition and how to respond to them:

  • If opposing counsel objects to the form of your question, try to rephrase the question.
  • If counsel claims that question is ambiguous, consider asking what the deponent understands by your question and use what the deponent says to rephrase your question and get the desired answer.
  • If the objection is to a missing or misstated element in a hypothetical question you asked a deponent expert, supply that element, if possible, or ask the deponent’s counsel to state missing elements. You can avoid this problem by developing written hypotheticals when preparing for an expert’s deposition and have your consultant review them for foundational accuracy.

Sometimes an objection isn’t what it seems. Opposing counsel’s actual purpose in objecting may be to coach the witness, e.g., opposing counsel may use an objection to suggest how the deponent should answer. If you think this is happening, you should generally avoid arguing about it because “coaching” is difficult to prove (opposing counsel’s objection and its result are already on the record). But if there’s obvious, repeated “coaching,” consider suspending the deposition and seeking a protective order. CCP §2025.470.

For step-by-step procedures for all aspects of depositions, turn to CEB’s Handling Depositions. CEB’s California Civil Discovery Practice is a comprehensive resource for everything related to discovery, including depositions. Also check out CEB’s program Preparing for, Taking & Defending Depositions, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

4 Responses

  1. Let me add one more thing in this Age of Video Depositions: always bear in mind that a jury MIGHT someday see clips from this depo at your trial. The objections are not always edited out, especially if they come to each of several questions in a row. Hence, PRACTICE TIP: Make your objections matter-of-factly, just the word “objection” so that your record is protected, and stop. Casual. Nothing more. It reads MUCH better on video in front of jurors later.

    Another bonus practice tip which I will have in an article on video depositions on my Juryology blog in about a week: If you are the defending attorney, don’t wear a microphone. There is no reason for you to have one, but plenty of risk. They pick up every sigh and under-the-breath cursing and “oh my god” (bad on video later) and bring no benefit. Your objections will also sound softer as they are picked up by other microphones.

  2. […] Be Ready to Pounce on Objections in a Deposition […]

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