“What do
these objections mean?”
If you’ve ever sat for a deposition, it can be an extremely stressful experience, especially to someone who’s never given sworn testimony before. You are unfamiliar with the process. There is a (sometimes angry) attorney trying to get information from you. The questions can be confusing. And then you hear the lawyer defending your deposition say:
“Objection , form.”
One of the attorneys then tells you that you can go ahead and answer the question, and it is just for the Court for later. But now, you’re probably thinking … “what was wrong with that question?
I've defended and taken too many depositions to keep count. Most of them occur under the Texas Rules of
Civil Procedure, as a super-majority of the cases in which I am involved are
filed in Texas state court.
Defending
a deposition means that you, as an attorney, present the witness to offer
testimony. Sometimes the witness is your client. Sometimes the witness is a corporate
representative or an employee of your corporate client. Sometimes the witness is an expert your side
retains to offer specialized testimony to assist the jury in a particular
area. After I defend a deposition, one
of the most common questions
In Texas,
the Rules of Civil Procedure only allow attorneys to object on 3 grounds: form,
non-responsive answer, or leading. The
latter two are easy enough to decipher as a lay person.
When I
object to form, it is because there is something about the question that doesn’t
work for me, and I don’t think the question (or any answer to the question)
would be admissible at trial.
When an
attorney objects to form in Texas, here are the things with which the objecting
attorney could have a problem with that particular question. I’ll list each one, and give an example of
the type of question I think falls into each category below. “Objection, Form” in a Texas deposition means
the question could be:
· Argumentative
question
o
Why did you injure this man?
· Mis-stating
the deponent or other witnesses
o
Mr. Jones said Mr. Smith looked angry and confused [but Mr. Jones
actually said no such thing in his deposition].
Do you agree with Mr. Jones?
· Compound
o
It was windy and raining at the time of the incident, correct?
· The question
is vague, ambiguous, or confusing
o
What did you tell her about it?
· Speculative
o
What do you think Mr. Jones thought Clause 10 meant when he signed
this contract?
· Assumes
facts not in evidence
o
Now we know that ABC Corporation was negligent when they hired Ms.
Smith to work as a child care provider.
Can we agree on that?
· Question
is too general or vague
o
What did you say to her in that conversation about the business?
§ About
what aspect of the business? Who is “her?”
· Asked and
Answered
o
This is usually a question that is asked and the lawyer doesn’t
get the answer they want, so they slightly rephrase it to try to get the
desired testimony.
· Harassing
and oppressive
o
When did you stop beating your wife?
· Incomplete
hypothetical
o
So if Ms. Jones attended this safety training class, this accident
wouldn’t have happened, right?
§ There may
be a host of other factors that went into the accident beyond safety
training. Weather, lighting, the
staffing of the crew, drug use, etc.
As a
witness, you will only hear the basis for an objection if the lawyer asking the
question asks the objecting attorney to “state your basis” or “state your
grounds” for the objection. The
objecting attorney is required under the Texas Rules of Civil Procedure to
provide a short response that doesn’t coach the witness but explains the
objection on the record.
Hopefully
this helps potential witnesses who give depositions in Texas to understand the
different things wrong with questions asked of them. If the witness takes a second to process the
question before an answer is given, it gives the attorneys in the room time to
object to form, which could give the witness insight that there is something
wrong with the question.
In my opinion, any witness, in any
jurisdiction, should not answer a question they don’t understand. The easiest way to work around this in the
deposition is if you don’t understand a question, tell the lawyer who asked the
question that you don’t understand and would appreciate if they could re-phrase
the question. If there’s a technical
word in the question that you don’t comprehend, tell the lawyer you need to know
what they mean by that word.
The goal
of any deposition is to get truthful, complete, and accurate testimony. Understanding the objections that will be
made, as well as what those objections actually mean, can help witnesses to
achieve these goals.
Hopefully,
any potential witnesses find this blog post helpful in this regard, understanding and appreciating the legal disclaimer associated with this blog.