To someone unfamiliar with the legal process, a deposition can be an intimidating experience. A deposition entails the subpoena of a witness interviewed under oath. A court reporter present during a deposition will transcribe the verbal responses of the proceeding. The written transcription can then qualify as evidence in a future trial.
The rules and procedures regulating the deposition process are quite simple. This article acts as a deposition objections cheat sheet for everything you should know about defending a deposition. Read on to gain a better understanding of the types of proper deposition objections raised against inappropriate questions.
Rules and regulations you need to know about depositions
A deposition takes place during the discovery phase when one party interviews a witness under oath to gather information before trial. Several important rules and procedures govern the deposition.
- Serving a subpoena: One party files a subpoena with the court and serves the witness with the subpoena. The court order means that participation in the deposition is mandatory, otherwise the witness could be charged with contempt of the court.
- Reasonable notice provided to the other side: The other party receives details of when, where, and who will participate in the deposition.
- The presence of a court reporter during the deposition: The court reporter swears the witness in under oath and transcribes the oral responses into a written statement.
- The deposing side asks the witness questions: The lawyer from the deposing side will ask the witness a series of questions. Note that the defending lawyer cannot instruct the witness to refrain from answering (except on very limited grounds, such as privilege).
- Objections in depositions: Whenever necessary, the defending attorney raises deposition objections to prevent the witness from providing misleading, confusing, or inaccurate testimony. Generally, proper deposition objections may be made on the grounds of form, relevancy, or privilege.
Objection: Form
When the defending lawyer makes deposition form objections, he is primarily concerned about the clarity of the wording. Some examples of more specific grounds for objection to form include:
- Compound: When the lawyer asks multiple questions at once (e.g. “Did George stop at the sign and look both ways before proceeding?”).
- Asked and answered: The question has already been asked, but the lawyer re-phrases it, attempting to elicit the desired response.
- Ambiguous: The phrasing of the question is vague (e.g. “What did they tell you about the accident?”).
- Calls for speculation: The witness is asked what they “would have done,” which can lead to harmful admissions.
- Misstates testimony: The question includes an inaccurate representation.
If the defending lawyer does not object to the form of a question during the deposition, the same objection to form is waived during future proceedings, including trial.
Objection: Relevancy
A lawyer may attempt to object to the relevance of a question if it is clearly off-topic. Irrelevant questions can be harmful to a witness testimony as they may serve to emotionally provoke the witness or reflect negatively on the witness’s character.
The relevancy objection is quite subjective, especially during the deposition. Questions are considered relevant as long as they can reasonably lead to the discovery of admissible evidence. As such, the definition of relevancy is broader during a deposition compared to during a trial. Further, many courts do not allow objections as to relevancy during a deposition unless the question is intended to embarrass or harass the witness.
Objection: Privilege
An objection based on privilege invokes the legal protections set in place by common law or statutory privilege. This is usually the only time a lawyer can instruct the witness not to respond to a question. Common examples of privilege include:
- Spousal Privilege: Spouses have the right to not testify against each other.
- Attorney-Client Privilege: Clients have the right to communicate freely with their attorney without fear of repercussions.
- Fifth Amendment: The Fifth Amendment privilege is when the witness’s response to a question could reveal self-incriminating evidence.
- Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings.
Tips for defending a deposition
When defending a deposition, there are several things to keep in mind:
- Prepare before the deposition: Review any relevant discovery information already provided.
- Keep responses short, precise, and truthful: The witness should avoid rambling and being over-inclusive in responses.
- Think before responding: It is a good idea to pause and think before responding. The pause also allows the defending lawyer to formulate an appropriate objection if necessary.
- Objections during depositions: If you do not object to the form of the question during deposition, you waive the right to the same objection in a future trial.
- Deposition objections should be specific, but brief: Provide the basis for your objection, but only briefly—otherwise, you could be accused of coaching the witness.
Preparing for your deposition can be a confusing and stressful time, especially in the middle of dealing with a serious injury. The legal team at Valiente Mott can help guide you through the entirety of the legal process, putting your mind at ease.
As Nevada personal injury attorneys, we have extensive experience representing victims all over the Nevada and Utah area. Contact Valiente Mott today for your free consultation!