Depositions: The "Show Him the Document" Objection

The show-him-the-document objection goes something like this:

Objection! You're asking the witness a question about a document you're holding in your hand. If you're going to ask questions about it, show it to the witness.

Is it a valid objection? No. You are entitled to ask what the witness knows about events or occurrences or anything at all without showing him documents first. Later you might decide to show the witness the document--to impeach the witness's recollection, for example, or to refresh the witness's memory if he has no recollection--but you don't have to show him the document first.

Questions about documents might be objectionable for other reasons, in which case other objections might apply. A question "did you sign a memorandum dated 12/11/05," put to a witness while you are looking at  the memorandum, might lack foundation and be vague. But it's not objectionable because you're holding the document in your hand and the witness can't see it.

The show-him-the-document objection? Ignore it and have the witness answer.

Comments

[Brian Peterson]

I've seen counsel ACT as though they are reading from a document when asking questions when in fact they are not. This underhanded tactic attempts to lead the witness to believe he said something in a prior written document that he never in fact said. In such cases, I think a speaking objection is appropriate. I noted on the record: "Let the record reflect that counsel is acting as though he is reading from some document which he is not showing to the witness." What else can you do in a situation like that?

[Evan Schaeffer]

Another option is to have the witness well prepared for that kind of conduct. It happens to me sometimes when a witness I'm defending, often a plaintiff, is being questioned about his or her medical records. I tell witnesses before their depositions to testify based on their memory and not to assume that just because the questioning lawyer says, apparently looking at a medical record, "didn't you tell your doctor X," that it is a true statement. If they remember it differently, they should speak up and say so. If they don't remember, they should say they don't remember.

I also speak up if the lawyer's characterization of an event diverges from the written records. Hopefully *I* have the written records in front of me, even if the witness doesn't. If I'm unsure about what record the lawyer has in front of him, I have no problem asking the lawyer, "What's that you're looking at."

Finally, some lawyers might choose to assert the improper "show him the document" objection. It obviously works sometimes, or lawyers wouldn't assert it.