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Avoid Using Trial Objections When Defending a Deposition


The following is a guest blog post by Micha Star Liberty. Micha represents plaintiffs in cases involving unlawful employment practices, personal injury and mass tort, defective products, civil rights, discrimination, antitrust violations, and consumer protection. She has offices in San Francisco and Oakland.

If you’re defending your client’s deposition and you have a problem with some of the questions the other attorney is asking, you’ll likely be tempted to object, as you do in court. But remember that there are different rules for objections in court versus in a deposition.

Before any deposition even begins, review the rules about objecting during a deposition and keep in mind that you have two goals when defending a deposition:

  1. assisting your client through what can be a stressful and intimidating process by making sure accurate and truthful testimony comes into the record, and
  2. protecting the record for appeal.

With these two goals in mind, think about the form of each question asked by opposing counsel, and if problematic, whether you believe they can cure the objectionable question by changing the question’s form. If you have an objection to either the form of a question, or because the question asks for privileged information, you must state the objection during the deposition or it is waived. So, make your record and object whenever necessary.

Unlike a trial, the deponent may still answer the question even if you object to it in a deposition and that answer may come in at trial if the court doesn’t sustain your objection. So prepare your witnesses thoroughly as if they were testifying at trial and, as you listen to the questions being asked and answered at deposition, envision what impact each would have on a jury.

The key to a defending a deposition successfully is preparation. Before you defend a deposition, know which objections are proper. See I Object! Know What Objections to Make at a Deposition.

It’s also important to know which objections aren’t proper during a deposition, even though they may be at trial. See e.g. CCP §2017(a).

The fact that an objection is only appropriate during trial doesn’t stop some attorneys from making them during a deposition. I have repeatedly seen attorneys object that a question assumes facts not in evidence. This objection is absurd during a deposition, as the entire purpose of the process is to gather facts to be used as evidence.

Another often-abused trial objection at deposition is that a question calls for hearsay. There is no such thing at deposition because hearsay is a trial objection aimed at keeping out-of-court statements made for the truth of the matter asserted out of evidence and every statement made at a deposition is inherently an out-of-court statement.

As tempting as it may be (particularly if you’re dealing with inexperienced or obnoxious opposing counsel), don’t abuse the discovery process by making objections only proper at trial during a deposition solely to obstruct the process.

But stand by your objections when they are proper. If you find yourself making deposition-appropriate objections to preserve them for trial and the other side is attempting to argue with you or bully you into withdrawing valid objections, make a record of the unprofessional behavior and constant interruptions. If the behavior doesn’t stop, adjourn the deposition and seek a protective order. See 5 Ways to Defeat Deposition Abuse.

Take the time to review the rules on objecting before entering every deposition so you don’t improperly object and you can effectively protect the record.

For everything you need to know about taking and defending depositions, including making objections, turn to CEB’s California Civil Discovery Practice, which includes a handy, laminated Checklist of Objections — a very helpful reference in the depo room!

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.

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