One of the most frustrating situations a lawyer can face is the inappropriate or abusive tactics in depositions by the opposing counsel. Depositions are one of the most important of the pre-trial discovery tools, yet attorneys can be tempted to decide what questions the witness should answer, or help the witness formulate answer. They might object or otherwise interrupt, then speak at length on the content of the question for the purpose of suggesting to the witness the manner in which to answer. Considering the time and expense of taking a deposition, inappropriate objections can be frustrating. Even so, Jane Muir explains, knowledgeable lawyers can easily deal with these abusive tactics.
In order to curb excessive objections that eat up deposition time, the Florida Bar Trial Lawyers Section, in its Guidelines for Professional Conduct, provides that when objecting to the form of a question, counsel simply should state: “I object to the form of the question.” The grounds should not be stated unless asked for by the examining attorney. If counsel makes an objection based on form, it may be necessary to provide a brief explanation or clarification of the objection. Such explanation or clarification should be provided only at the request of deposing counsel and should be succinctly and directly stated without suggesting an answer to the deponent. While a question is pending, counsel should not coach the deponent, nor suggest answers through objections or otherwise.
Even though lawyers sometimes forget, the purpose of a deposition is not to determine whether evidence is admissible at trial, but rather to ask questions that are reasonably calculated to lead to the discovery of admissible evidence. Objections as to competency, materiality, or relevance are therefore inappropriate. In spite of this, some lawyers will employ the tactic of instructing a witness not to answer a question based on substantive objections. In this type of situation, it is a good idea to state for the record that you are not seeking privileged information or harassing the witness, and that any irrelevant information would be disallowed at trial.
Another abusive tactics in depositions is a coaching tactic in which a lawyer instructs his witness to answer the question “only if he knows,” telegraphing to the witness that he wants the witness to answer, “I don’t know.” Such a statement can be avoided by giving instructions at the beginning of the deposition that include the admonition that the witness should answer only if he knows. Should one encounter such a tactic, an appropriate response would be to assure opposing counsel that your questions presume the witness will answer only if he knows, and refer to the opening instructions. Should the inappropriate objections continue, you can adjourn the deposition, move for protective order and move for sanctions.
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