Think before responding: It is a good idea to pause and think before responding. The pause also allows the defending lawyer to formulate an appropriate objection if necessary. Objections during depositions: If you do not object to the form of the question during deposition, you waive the right to the same objection in a future trial.
Dec 19, 2018 · Control the marks in the record: After each of opposing counsel's outbursts, request that the court reporter "mark the record," then instruct the witness to answer as if their counsel wasn't even present in the room. 5. Control time: If the insults just don't stop despite repeatedly counseling your opposing counsel to refrain and stop wasting ...
If counsel objects to a deposition question that can be immediately cured, the lawyer must state the grounds to avoid waiving it. The objecting attorney must give enough detail to “provide the questioner with the opportunity to obviate the mistake while the deposition is taking place.” (See Davis, 117 Md. App. at 403-04.)
In addition, attorneys on both sides will often agree to keep deposition objections to a minimum to make the process go more smoothly. This does not mean that the deposing attorney can ask you any questions he wants and you must answer; it means that both attorneys have agreed to keep the line of questioning relevant and to the point.
Dec 21, 2021 · Stay on the record and ask the witness the prepared questions. Request that the defending attorney speak to the witness privately to advise the witness of the consequences of obstructing a deposition. Make a record to submit to the court in connection with a motion to compel testimony or for sanctions.
If counsel objects to a deposition question that can be immediately cured, the lawyer must state the grounds to avoid waiving it. The objecting attorney must give enough detail to “provide the questioner with the opportunity to obviate the mistake while the deposition is taking place.” (See Davis, 117 Md. App. at 403-04.) This protocol affords the party taking the deposition the chance to re-word the question and cure any problems in it.
If the deposing attorney asks a question that invades a witness’s privilege, such as the attorney-client privilege, the opposing attorney may instruct the witness not to answer. Maryland Discovery Guideline 6 states that where an attorney asserts a claim of privilege at a deposition, the attorney “shall identify during the deposition the nature of the privilege (including work product) which is being claimed” and shall provide certain information about the allegedly privileged communication, including the date and general subject matter of the communication.
Plaintiff’s counsel moved for sanctions, arguing that the defense attorney had improperly coached the witness to answer a certain way. The trial judge agreed, stating: “By her interjection of her statement of evidence, that Dr. Driesman did not perform that part of the procedure and was not present when it was performed, defense counsel was . . . suggesting to the witness what she wanted him to say in response to plaintiff’s counsel’s question.” The court imposed sanctions on defense counsel.
Here the objection permitted the defense attorney to pose the question correctly and move on. If plaintiff’s counsel had failed to object, it would have been waived.
Here are some helpful guidelines for knowing when and how to object. 1. What objections are necessary ? At a deposition, an attorney is required to object to those defects that are immediately curable–that is, irregularities that opposing counsel can correct at the deposition.
The Committee Note to Rule 2-415 gives examples of concise, non-suggestive objections, which include: “objection, leading”; “objection, asked and answered”; and “objection, compound question.” If an attorney believes a more detailed objection is necessary but could improperly coach or guide the witness, then any party can have the deponent excused during the making of the objection.
Timely objections are necessary, for instance, where a question is leading, vague or unintelligible, mischaracterizes prior testimony, calls for speculation, or constitutes a compound question. Problems can also arise with answers. If the attorney taking the deposition believes the witness has not provided a responsive answer, that attorney should object accordingly.
However, simple questions are often interspersed with questions that can prove revealing, such as “Where do you live?” and “Do you live alone?”
The real legal world is rarely as tense an active as courtroom dramas would have you believe. For example, your attorney is bound by the law when objecting to questions: he may only interrupt if the question is irrelevant or improper. If the answer hurts your case, but is relevant, there is legally nothing he can do.
Beware of any question that requires a long answer. Deposing attorneys can always use your words against you, and you may not fully consider your word choices when giving your opinion.
In addition, attorneys on both sides will often agree to keep deposition objections to a minimum to make the process go more smoothly. This does not mean that the deposing attorney can ask you any questions he wants and you must answer; it means that both attorneys have agreed to keep the line of questioning relevant and to the point. If the opposing attorney strays from this agreement, your attorney will be allowed to do the same with his clients, so it is best for both advisors to stay on task.
If you do not know, that is the answer. Hearsay. Hearsay is perhaps the most common objection in trials and depositions. This is stating as fact what you heard someone else say.
One of the key ways to obtain information in litigation is by depositions. In the most common scenario, these are depositions of the parties. Essentially, a court reporter and the attorneys and the litigants meet at one of the attorney’s offices or the office of the court reporter, the witness/party is sworn under oath, ...
Non-responsive answers. Depositions expose the natural ebbs and flows of language and how often times we answer a question with another question or answers that are not responsive. Many people have perfectly complete conversations this way in life. However, legal questions focusing on establishing precise facts are not well suited to this type of response. It is key the deponent listen to the question and answer it to the best of his or her ability, no more or less. The entire legal system relies on accurate and responsive answers to questions.
However, in depositions, to get to an actual fact that has legal weight, this language “baggage” must be shed and witnesses can only testify in depositions and trial about facts based upon personal experience and observation.
Unless this is the opposing party, it is prohibited as a general rule as a statement of fact. The person who stated the fact must be the person who testifies about the matter. However, some hearsay statements are not made for the truth of the statement, such as Mr. Smith said X, but to prove Mr. Smith was at the scene.
Speculation. Speculation is a close second to lack of personal knowledge. This too is prohibited in depositions and trials. These are objectionable but in a deposition, the question may ordinarily be answered. Speculation is what we assume occurs from the normal course of human events.
Objection: Question Presented with Improper Form. Perhaps one of the most common deposition objections is the objection to form. In most cases, you will have some flexibility and may submit a general objection to form. On the other hand, in some jurisdictions, you’ll need to share specific grounds for your objection.
Some of the most common reasons for this objection are when the question is confusing, ambiguous, argumentative, prejudicial, or calling for speculation.
This happened because the defense “did not make a sufficient objection to that document at the trial deposition where the document was introduced.” Furthermore, the parties did not stipulate that any objections were reserved until the trial.
Typically referred to as a “loaded” question, deposing attorneys may ask the expert to respond to questions based on assumptions, inaccurate facts, or facts not in evidence. It is entirely reasonable to object to questions which clearly lack a foundation, however you may need to be more cautious in objecting to questions with only some support. Try to pay attention to exactly how the question is phrased, and only object if the attorney words the question as though the disputed fact is already conclusively established. You don’t need to object if the opposing counsel makes it clear the witness is being asked to make an assumption.
In some cases, it may be appropriate to challenge the witness’ qualifications, area of expertise and the reliability of principles and methods used to form the opinion. By properly raising objections during the deposition, it is significantly more likely that you will be able to impeach the expert at trial.
During the discovery process, it is not uncommon for both parties to retain an expert witness. The testimony of an expert lends credibility to your argument, but many jurisdictions have particular rules regulating discovery of expert witnesses. As you proceed with your case remember that nearly all objections are waived if they are not made during the deposition. In this article, we’re going to review some useful objections and discuss the importance of asserting these objections during the deposition.
Unless the witness is a legal expert, they should not offer any kind of legal analysis of the case. Expert testimony should be limited exclusively to factual information. If the witness attempts to provide a legal analysis, consider objecting based on FRCP 26 (b) (4) (C). Attorney work-product is protected under this rule and the Advisory Committee specifically notes that it “is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.”
A deposition is meant to get a correct answer from deponents, not to test their memory, so a witness is allowed to review referenced documents before giving an answer. Seeing the document may help to refresh their memory. This also makes it clear that they are not trying to evade the question, but rather trying to ensure that their answer is correct.
The opposing counsel may ask questions that seem irrelevant or silly, but try not to appear annoyed by the questions or the deposition. Staying calm and giving honest, thoughtful responses to all questions is the best course of action.
If you do not know the answer, it’s ok to say so. Don’t guess, speculate, play a hunch or try to answer something because you feel like you have to. It’s very likely that, if you mess anything up, it’s going to be trying to answer something you don’t know the answer to. Because a deposition is sworn testimony, say what you know to be true without avoiding giving testimony that you do know. You can also say something like, “I don’t know but my best estimate is x.” This allows you to provide an estimate without being held to anything specific.
By answering a question, it is presumed that you understood the question. Asking the other side to rephrase a confusing question is best.
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If giving an estimate, don’t let the other side force into choosing an answer that you are not sure is correct. In other words, don’t allow the other side to restrict your answer.
3. “I don’t know” is a perfectly fine answer
Your client’s deposition is opposing counsel’s opportunity to gather information and evidence to prepare their case and determine any opportunities to narrow the issues at trial. However, this does not mean that opposing counsel gets to browbeat and bully your client.
You cannot wait until the day before the deposition to prepare your client, especially if this is your client’s first time being deposed or your client has been asked to produce documents at the deposition.
Plan to spend at least one hour meeting with your client to: (1) explain the general deposition process and structure, (2) review the relevant issues and facts of the case to which he or she is anticipated to testify, and (3) ensure you have answered all of his or her questions about the process.
This means that the court reporter will retain the original copy of the transcript during the time frame allotted for your client’s review. Once this time frame expires, the original transcript, with your client’s changes, will be delivered in a sealed envelope by the court reporter to the noticing attorney.
Improper form (i.e., ambiguous, uncertain, compound, calls for narrative, calls for speculation, argumentative, leading); and
Your client must still answer the question asked after you state your objection, unless the objection is based on privilege or work product. You cannot instruct your client not to answer a question for any other reason.
Does this mean protecting your client at a deposition is your chance to channel your inner Harvey Specter? No! Absolutely not ! California’s Attorney Guidelines of Civility and Professionalism still apply while defending your client’s deposition.
That booklet is called a transcript. That's your deposition transcript. In legal circles a deposition is also known as an examination before trial. When you bring a lawsuit, you put your medical condition in issue.
The defense lawyer must have a good faith basis to ask the question.
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When you bring a lawsuit the defense lawyer has a chance to ask you questions.
The stenographer is there to record all of the questions you are asked and all of the answers you give. Those questions and answers are transcribed and put into a booklet.
That means the defense is entitled to learn about you and your injury. They do this through a process called 'discovery'. What a trend-setting name. Discovery allows the defense lawyer to get copies of your medical records.
Not true. Every client talks to their attorney. Every client must be prepared for their deposition. The defense lawyer is just fishing for information. He's throwing his line into the water, not knowing what, if anything, he'll catch.