by Mitch Garrett
If you’ve ever sat in a deposition, you have probably heard a partner tell a witness late in the afternoon, “depositions are the best part of our job.” For a young attorney, the opportunity to take a deposition may be the first adversarial experience of your young career. But between making sure to ask all the necessary questions, listening to the witness’s answers, dealing with objections, and incorporating co-counsel’s advice, there is quite a bit for a young attorney to learn to handle. While there are countless books that cover all aspects of taking a deposition, this article seeks to address the simple problem of “form” objections under the Texas Rules of Civil Procedure.
The Texas Rules of Civil Procedure allows just two objections to questions during a deposition: leading and form. By far the most common—and most ambiguous—objection is the form objection. As the name suggests, an objection to form is proper when the question is poorly phrased but is not necessarily substantively objectionable. While relatively innocuous in its definition, a well-timed form objection may wreak havoc on a young attorney’s nerves, or worse, their examination. Below are some tips and examples so that the objection to form does not phase you at your next deposition.
- Ask for the basis of the objection. The comments to the Texas Rules provide five ways a question may be improperly formed: it calls for speculation, it calls for a narrative, it is vague, it is confusing, or it is ambiguous. A question may even be so off-track that the witness is not required to answer because the answer would necessarily be misleading. But do not worry, you are entitled to ask for the basis of the objection. If you are not sure where the question went off track, just ask. And if the objection is proper, fix the question.
But some objections are not proper. Below is a short list of some commonly asserted, but improper, objections:
Asked and answered: This is not a form objection because it cannot be fixed by rephrasing the question. Almost always, this objection can be ignored. Similar questions are often asked throughout depositions, to confirm facts have not changed the witness’s testimony or attorney’s understanding or simply as the natural conclusion to a logical sequence. If the repetition arises in the natural sequence of questioning, and is not a tactic for abuse or harassment, it is improper.
Hearsay: Again, this is not a form objection. If it is hearsay, it is not admissible and can be objected to at the time of offering. If the question is calling for hearsay, it is likely the only way you can ask that witness because they do not have first-hand knowledge. But you want the juicy information, whether it is admissible in the form you are currently getting it or not. So, ask the question and sort out admissibility later (often with another witness).
Foundation: Unless the question is so baseless that its answer would be misleading, this is not a form objection. Depositions are your opportunity to establish the foundation of evidence. If the question is tailored to lead to admissible evidence, the question has all the foundation it needs.
- Get the answer, then fix the question. A witness generally must answer every question, regardless of objection. So, if asking for the basis does not tell you how to fix the question, work backwards. Get the answer, then fix how the question was asked. While this should not be abused, this can be an efficient way to straighten out confusion by the attorney, witness, or both.
- You (probably) have time for follow-up discovery. If there is a question you just cannot get right or get the right answer, you can always follow up with other forms of discovery. You may even be able to ask that the witness fill in any missing information during the read and sign period (like missing names, titles, addresses, etc.). The bottom line: there are more chances to get the information that matters. Do not let one question spoil the deposition.
With these few tips in hand, you can be on your way to conquering any deposition, without fear of objections. So, get out there and have some fun. Depositions really are one of the most fun parts of litigation.
Mitch Garrett is a Senior Associate at Ryan Law Partners LLP practicing commercial and financial fraud litigation. He can be reached at firstname.lastname@example.org.
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