Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself.
Preparing Your Client
First things first. You must prepare your client for the deposition. Start by reviewing the case with your client, along with the questions you anticipate will be asked. Practice asking questions you think the deposing lawyer will ask — especially the hard questions you hope will not be asked.
If you are representing the plaintiff, review the complaint and walk through the facts alleged. Discuss the defenses raised and how the plaintiff might respond. Examine the damage calculations.
If you represent the defendant, reflect on the facts alleged in the answer. Discuss the defenses, and particularly the reasoning and factual support for each of them. If your client brought a counterclaim, cross-claim, or third-party claim, make sure your client understands the damages, including how they were calculated.
No matter which party you represent, carefully walk through the discovery responses. Play devil’s advocate with your client and challenge them with the hard questions.
Remember, the purpose of a taking deposition is to gather information, not to show off. The permissible scope of discovery is whether the information you are seeking is reasonably calculated to lead to the discovery of admissible evidence. The standard is not whether it will be admissible. The standard is: could the information you are seeking lead to admissible evidence? So, information you cannot seek at trial can be fair game in a deposition, and that is the beauty of depositions.
Remind your client of the following:
Depositions can be tedious, but they are so important in litigation. Deposition testimony can make or break a case. It is sworn testimony that can be used to impeach at trial. It can expose the relative strengths and weaknesses of each party’s case. It can lead to crucial admissions or denials of liability. Through deposition testimony, you can truly push for quantification of damage claims.
When I was preparing to take my first deposition as a new lawyer many years ago, I sat down and read a book about deposition techniques. I was surprised to learn that very few objections are proper in a deposition. After observing several depositions, I discovered that many lawyers have not learned this. Lawyers often make deposition objections that are improper and interrupt the flow of information. And there are lawyers who have learned which objections are proper, but who make improper objections simply to interrupt and to intimidate opposing counsel.
Making improper deposition objections does interrupt the flow of the deposition, so you may think it hurts the lawyer taking the deposition. It can also interfere with your client’s concentration, and it can lead to a loss of credibility for the lawyer who continues to object.
No matter how opposing counsel behaves, keep your cool at all times. This is not always easy. If the other lawyer starts yelling, note their tone of voice on the record. (So the court reporter can take down your comments, say something like “let the record reflect that Mr. Jones is shouting” out loud.) If the lawyer gets out of control, you may wish to dictate a play-by-play of what is happening (“Mr. Jones is now standing up, leaning over the table, pointing his finger in my face and continuing to scream.”). Above all, stay calm, make a clear record, and get the judge on the phone if necessary.
Improper Deposition Objections
Q: “Do you think that the brakes were in working order on the Toyota?”
Q: “Why not?”
A: “When I drove it 2 weeks before the accident they were acting funny.”
The lawyer taking the deposition can obtain information that may not otherwise have been received in written discovery, and the answers can lead to discoverable evidence.
Do not let yourself get bullied by an opposing counsel who is making improper objections. If several improper objections are made, there are a few ways to respond. You can ask, for example, why the objections are being made, as they are not required for the record. Be prepared for that to lead to an argument.
If that discussion gets you nowhere, you may wish to tell the other lawyer that you will assume that there is a standing relevancy (for example) objection to every question, so the objection no longer needs to be made. If neither of those things works, just try to tune out the objections and proceed with the deposition.
Inform the deponent that unless their lawyer instructs her not to answer, that they should answer the question. (There are rare instances in which a lawyer can properly instruct a deponent to refuse to answer.)
Proper Deposition Objections
Many lawyers underestimate the importance of depositions. Whether you are defending or taking a deposition, knowing how to make and respond to objections will lead to a more effective and productive deposition.
Originally published 2013-10-15. Last updated 2016-11-11.