Depositions: Asserting Control with the "Nonresponsive" Objection

When a witness won't answer your question directly, you should keep on track and ask again, like this:

Thanks for that, but you didn't answer my question. Did you supervise Mrs. Smith?

After a couple rounds of repeating the question, you'll usually get a proper answer. Sometimes, though, you'll have to increase the pressure with an "unresponsive" objection.

Mr. Witness, your answer is not responsive to my question. I move to strike your answer. I'll ask the question again. Did you supervise Mrs. Smith?

In my experience, witnesses often become unnerved when you "move to strike" their answer and immediately become more cooperative. Even if they feel comfortable about the deposition process in general (doctors, for example), your motion to strike leaves them standing on uncertain ground, possibly feeling as if they risk suffering some personal sanction.

Although the "nonresponsive" objection can also be useful at trial, keep in mind that the objection can only be used by the questioning lawyer. As explained by Joseph M. McLaughlin in an article in The Litigation Manual: Trial--

Nonresponsiveness is a problem between the questioner and the witness. It is none of the adversary's business. In other words, the only personal who can move to strike a nonresponsive answer is the person who put the question.

See "Objectionable Objections," Joseph M. McLaughlin, The Litigation Manual: Trial (ABA 1999). See also McCormick on Evidence, p. 52 at 127, n.6 (3d ed. 1984); People v. Sweeney, 46 Ill. App. 3d 858, 361 N.E.2d 344 (1977) ("The statement could only be stricken on a request from the questioning counsel, the only one who has standing to object to the nonresponsive nature of the witness' remark").

Comments

[FredN.]

Evan,
On a slightly related note, do you know of any authority for the following: Counsel states during deposition that if a question is pending, the witness may not take a break or confer with his attorney.

Can't seem to find authority for this that most attys take for granted, but sometimes get challenged on!
Thanks,
Fred

[yclipse]

I have always had some level of disagreement with the idea that the objection lies solely with the questioner. If an answer is not responsive, it should objectionable by any party to the deposition. Most often, for the opposing party, it is really grounded on lack of relevance. But isn't that true for everyone there?

Q - What did you see as you approached the intersection?
A - I was still trying to get her to change the radio station, and I was asking her to find me a station that I liked. . .

[Dan N]

While the objection to a non-responsive answer is reserved to the propounder of the question, a motion to strike is generally available to the adverse party when the non-responsive answer is otherwise inadmissible on other grounds, such as relevance.

[Emma]

If a motion to strike has been filed in court but there hasn't been aruling yet, do I have to answer questions about the info in the motion to strike at a deposition