The Trial Practice Tips Weblog

Objections During Depositions: When and How

From the Atkinson-Baker Discovery Update: "When and How to Object During a Deposition," by Paul Mark Sandler and John J. Lovejoy--

At a deposition, an attorney is required to object to those defects that are immediately curable--that is, irregularities that opposing counsel can correct at the deposition. Such defects include procedural matters, such as the manner of taking a deposition, the form of questions or answers, the oath or affirmation, and the conduct of the parties.

Timely objections are necessary, for instance, where a question is leading, vague or unintelligible, mischaracterizes prior testimony, calls for speculation, or constitutes a compound question. Problems can also arise with answers. If the attorney taking the deposition believes the witness has not provided a responsive answer, that attorney should object accordingly.

There's much more in the complete article. The authors are lawyers at Shapiro Sher Guinot & Sandler.

Depositions: Thirteen Tips

My book about depositions is titled "Deposition Checklists and Strategies" (James Publishing). You can read thirteen practice tips from the book here (pdf), including--

• Impeachment nuggets;
• Uncooperative witnesses;
• Forgetful witnesses;
• Form objections; and
• Controlling witnesses.

Getting the Complete Story from Your Client

Here's a tip from Ashley Lipson's Guerilla Discovery. To insure you're getting the full story from your client, try asking a question something like the following:

I know that you've told me the truth and I believe you. But we have to prepare for those lying S.O.B.'s on the other side. What kind of lies are they going to tell? Tell me what lying description of the events they are going to tell so I can prepare for them.

Lipson suggests this question for deposition preparation, but it might also be useful during initial client interviews. According to Lipson, it's likely you'll hear some things from your client you didn't know before--things you'll need to know about your client's case before getting in too deep.

Deposition Podcasts: Advanced Techniques

For free deposition advice, why not try my three podcasts on advanced deposition techniques? Originally posted Legal Underground, I'm reprising them here (yet again). Just follow the links--

Advanced Deposition Techniques #1: Five Tips for Asserting Control at Depositions

Advanced Deposition Techniques #2: Four Ways to Use Psychology at Your Next Deposition

Advanced Deposition Techniques #3: Miscellaneous Tips for Expert Depositions

Combined, these three podcasts have now had nearly 3,000 downloads. You can listen on a computer with speakers or even better, on any iPod or mp3 player. The 48 other podcasts I did before giving it up can be found here.

If you like what you hear on the deposition podcasts, don't forget my book: Deposition Checklists & Strategies (James Publishing, 2d Ed. 2007).

Videotaped Depositions Become More Common: A Developing Trend?

Are the lawyers who you work with expressing any of the following ideas--

• A feeling that it's important to videotape all depositions of any witness an opponent might use at trial?
• Surprise that the lawyers' opponents are not videotaping depositions of witnesses the lawyers plan to present at trial?
• A desire to videotape depositions with their own, in-house equipment?

There seems to be a trend towards videotaping depositions more frequently than in the past. Here's more evidence of that, as well as a possible explanation: "Put Your Best Foot-in-Mouth Forward: Use Depo Video Powerfully," by Dr. Kevin Boully.

Hat tip: The Discovery Update, 8/09, byAtkinson-Baker Court Reporters.

Related posts:

1. "Videotaping the Deposition of Your Opposing Expert"

2. "Controlling Abusive Counsel with Video Depositions"

3. "Videotaping Your Opponent's Deposition"

Deposition Tip: Help with Sniffing Out the Liars

From Forbes: "How To Sniff Out A Liar," by Melanie Lindner--

While there is no surefire on-the-spot way to sniff out dissemblers, there are some helpful tactics for uncovering untruths.

Liars often give short or one-word responses to questions, while truth tellers are more likely to flesh out their answers. According to a 2003 study by DePaulo, a liar provides fewer details and uses fewer words than an honest person, and talks for a smaller percentage of the conversation.

Skilled liars don't break a sweat, but the rest of us get a little fidgety. Four possible giveaways: shifty eyes, higher vocal pitch, perspiration and heavier breathing. Of course, not everyone who doesn't meet your gaze is a liar.

If you think this advice might be helpful to your deposition-and-trial practice, check out the full article. While not written specifically for lawyers, much of it applies to what trial lawyers do.

Related posts:

1. "Practice Tip: Assume Your Deposition Witness Is Lying."

2. "Cross-Examining the Liar at Trial: Two Absolute Prerequisites."

Prior to the Expert Deposition: Investigate the C.V.

Don't save your review of an expert's CV for the night before the deposition. Read it well in advance of the deposition, then mark it up and investigate the expert's claims.

Has the expert exaggerated his qualifications? Such exaggerations can seriously undermine his credibility. Has the expert included items on his CV that are simply wrong? It happens. Even typographical errors indicate a level of sloppiness on the expert's part.

Here are some things to look for--

• What does the CV say about the expert's areas of expertise? How does this overlap with what the expert is going to testify about in your case? Sometimes there is a large gap between what the expert actually does at work and what he or she plans to testify about at trial.
• What are your expert's particular areas of research interest? Again, there is often a large gap between what the expert spending time researching in real life, and what he or she has been hired to testify about in your case.
• Does the CV contain puffery? Are there claimed memberships that have expired? Are there claimed licenses that have lapsed? Were the majority of the expert's honors and award granted years ago? All of these things are fair areas of inquiry at the deposition.
• What is omitted from the expert's CV? Always check news databases and published opinions to find out more about the expert's professional life and activities.
• To whom is the expert beholden? If the expert is working or consulting for industries that hold views contrary to the one you are presenting in your case, this is something you'll want to explore further at the deposition. If the expert's CV lists grants, find out who sponsored those grants.

Too often an expert's CV is all but ignored at depositions, when it is almost always fertile ground for questioning. Just remember to prepare yourself for these questions in advance (and to review your own expert's CV before presenting it to the other side).

For more about cross-examining experts, see also these related posts: "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial" and "Cross-Examining Experts During Depositions: A Tip."

For those who have my book Deposition Checklists and Strategies, see also Chapter I, VII, Expert Depositions, and §1:216 Five Ways to Hit Homeruns with an Expert's CV.

Objections to the Form of a Question: A Partial List

Lawyers who are defending depositions (or learning how to to defend depositions) sometimes like a handy list of form objections. If the form objection is not made during the deposition, this type of objection is normally waived.

Here are some typical form objections:

• "Vague." The question is unclear. The question might be too long, some of the key words in the question might have more than one meaning, or the period of time to which the questioner is referring might be unclear. (Similar objections: "ambiguous" and "confusing.")

• "Compound." The question is actually two questions.

Example: "Did you find the cancelled check on the ground and take it with you?"

• "Argumentative." Though it might be a question grammatically, the questioner is asking it not to get an answer, but to make communicate some other message to the witness.

Example:"When you arrived at the deposition this morning, had you already decided not to give me your full attention?"

• "Asked and answered." The questioning lawyer is covering the same ground a second time, asking a question to which he has already received an answer.

• "Assumes facts not in evidence." The question contains a factual statement that has not yet been established.

Example: "Did you interview the employee before firing him?" (asked when there is no testimony that the employee was fired.)

• "Misstates the evidence" or "misstates the witness's testimony." The question contains a factual assumption for which there is no evidence in the case, or the question incorrectly quotes or paraphrases what the witness has testified to in the deposition.

• "Leading." The lawyer is asking a leading question to a witness to which he is not permitted to ask leading questions.

Example: "When you proceeded into the intersection, the light was green, correct?"

• "Lacks a question." Sometimes a lawyer will make a statement rather than ask a question. The defending lawyer can object by saying something like, "Objection, that's not a question," or "Objection, the question was preceded by a statement that wasn't a question." (However, it's likely that you could get the offending comments removed from the transcript before trial even without a timely objection at the deposition.)

• "Lacks foundation." The questioning lawyer is asking the witness concerning a fact or topic about which the witness lacks personal knowledge.

Example: "What warnings were contained on the package insert?" (without establishing that the witness received and read the package insert.)

Some common objections that are not to the form of the question include irrelevance and hearsay.

If you'd like to add other objections to the list, please leave a comment. For more information on deposition objections, see my book, Deposition Checklists and Strategies (James Publishing)

Related posts:

1. "The Anatomy of the Perfect Deposition Question."

2. "When Are Leading Questions Permitted During Federal-Court Depositions?"

3. "Depositions: Don't Ignore Form Objections."

4. "Depositions: Asserting Control with the 'Nonresponsive' Objection."

Dealing with 30(b)(6) Depositions from the Defense Perspective

Depositions of corporate representatives remain my preferred method of working up a plaintiff's class action or products-liability case. As seen in the "related posts" below, I've written about 30(b)(6) depositions before, but usually from a plaintiffs' perspective.

In "Be Prepared to Deal With Deposition Notices," Lori L. Pines and Ardith Bronson look at 30(b)(6) depositions from the defense point of view:

Your company has just been served with a 30(b)(6) deposition notice under the Federal Rules of Civil Procedure, and it is your job to respond to the notice and determine who will testify on behalf of the corporation. Is there anything you can do to ensure that your company puts its best foot forward at the deposition? The answer is yes: There are numerous strategies for selecting and preparing witnesses to participate in these depositions.

Pines and Bronson have written a comprehensive article that covers many knotty issues, such as how to choose the testifying witness or witnesses, whether the questioning lawyer is limited in the questioning to the topics in the deposition notice, and the length of the deposition if more than one witness is selected to testify. Recommended.

Related posts:

1. Discovery: Cut Out the Middleman

2. More on Corporate-Representative Depositions, Plus a Sample Notice

3. Corporate-Representative Depositions: Are You Limited to the Topics in Your Notice?

4. Corporate-Representative Depositions: An Amplification of My Last Post

Depositions Before Interrogatories?

Can a well-crafted set of interrogatories ever hurt your case?

In many complex cases, interrogatories served early in the case can educate your opponents about your case strategies at a time when you'd rather keep them in the dark. Moreover, when you serve the interrogatories on your opponents, you are requiring them to get up to speed on their own case strategies, perhaps sooner than they would have done so otherwise.

For these reasons, some lawyers like to depose the key witnesses before serving any but the most basic interrogatories. The idea is that you will deprive these witnesses (and your opposing lawyers) from some of the early-stage strategizing that often allows them to rehearse their answers in advance. With an element of surprise, you're more likely to get spontaneous and unrehearsed admissions.

Try it sometime and see if it works for you: depositions before interrogatories.

Source: Kenneth R. Berman, "Q: Is This Any Way to Write an Interrogatory? A: You Bet It Is," from Litigation magazine, reprinted in The Litigation Manual: Pretrial (ABA).