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'Objection To Form': The Value Of Specific Objections At Deposition

While the generic objection "as to form" allows you to get out your objection quickly, you risk not fully preserving the objection and not properly giving your adversary notice allowing him to reword his question, and you are acting contrary to the rules of practice in some jurisdictions.

By Matthew W. Schmidt  
on
Matthew W. Schmidt

Matthew W. Schmidt

Ed. note: Matthew W. Schmidt, an attorney at Balestriere Fariello, is filling in for John Balestriere this week.

One of the easiest habits to fall into when defending depositions is to make objections “as to form” without a more specific basis. While this generic objection allows you to get out your objection quickly, you risk not fully preserving the objection and not properly giving your adversary notice allowing him to reword his question, and you are acting contrary to the rules of practice in some jurisdictions.

More importantly, bland form objections encourage a lazy mindset, where instead of fully analyzing the questions posed to your client, you reflexively object if a question sounds “wrong.” In addition to potentially causing embarrassment when an adversary calls your bluff and asks the particular basis for your objection, it also robs your professional development and encourages thinking that makes it harder when placed in a situation—like at trial—when you do have to identify quickly specific grounds for objection. Particularized objections can also more effectively nudge your adversary to ask better-phrased questions, which in many circumstances are also clearer and less likely to elicit confused or harmful testimony from your witness. While privilege, harassment, and instructions not to answer get much of the attention, proper thought towards your handling of form objections is also an important practice point.

The Specific Objections Themselves

There are a number of ways to break up and to articulate the different form objections, and it’s often a matter of personal preference. My colleagues and I often find the following five most helpful:

  • Lack of Foundation. Lawyers taking depositions will often jump ahead chronologically. This happens when lawyers very familiar with a case may innately skip factual steps and assume that the witness can keep up. But oftentimes this is not the case, and a failure to establish proper foundation can result in a confusing transcript or one in which your witness gives unclear testimony.
  • Vague. Perhaps the most common of all form objections, deposing lawyers will often unintentionally ask a question that could be interpreted in several ways. While hopefully your witness will catch this and ask for clarification to any question they don’t understand, the simple linguistic barriers between lawyers who are intensively engaged in a matter and businesspeople remembering events from years prior means that unintentional vagueness can happen. Or, worse, in the heat of the moment your witness may forget the cardinal deposition rule of “never guess” and take a guess as to what he thinks the question is, creating potentially damaging testimony.
  • Calls for speculation. This type of question and the ones below are the most dangerous, in part because adversaries may use them to try and get your witness to make potentially harmful admissions. These often take the form of trying to get a witness to “admit” some underlying fact about the case. While generally unlikely to be admissible, you want to be careful to preserve your proper objections to such questions. Also making your adversary aware of—and the record reflect—the objectionable question is likely to cause him to be more careful in his questioning. Speculation questions in particular are used to try and get a witness to talk about what they “would have done.”
  • Calls for legal conclusion. Some adversaries love to try to get witnesses to make conclusions as to the ultimate disputed issues in the case. While the witness will generally have no valid basis for such a statement, having it in the record will likely cause at least annoyance down the road, as your adversary attempts to bring it up later as “proof” to the merits of his version of the case.
  • Misstates testimony. This hopefully will come up the least often in your depositions, but can be the most damaging and can be the hardest to catch if you’re not alert. Failure to object to such questioning can cause a confused record, as the witness proceeds upon on an incorrect basis of testimony that they mistakenly think that they said. This objection should be used judiciously, however, and only when you’re able to answer a question from your adversary of how his question misstates the witnesses’ testimony.

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The Next Steps

No matter what form objection you choose to make, you should always make your objections calmly. While showing anger or annoyance is common, it generally does nothing except needlessly escalate the situation, and increases the likelihood that you will be accused of improperly interrupting the deposition or coaching. There are few firm guidelines in proper handling of form objections or when the line is crossed into speaking objections, and many magistrate judges and practitioners have their own firmly held views that may be contradictory. This especially makes behaving in a civil manner valuable, particularly if practicing in an unfamiliar venue. But no matter what you do, it’s key to remain thorough and keep in mind the purpose of any objection that you make.

Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

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