Defending a Deposition
In an earlier post, I described depositions generally. They are an opportunity for a lawyer to question a witness before trial. But the lawyer asking the questions is often not the only lawyer present. Instead, another lawyer usually “defends” the witness who is testifying. But despite the term, the “defending” lawyer may not do much talking.
Why should you read this post about defending depositions?
You’d like to be somewhere that people say “objection” a lot.
You want to know some arcane rules about questioning witnesses.
You want to know something they don’t teach in law school and that lawyers usually have to learn by doing or watching.
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Objecting to the Form
At a deposition, the defending attorney usually sits next to the testifying witness. And most of her job is to listen to each question and object if there is something defective about the question. She does this just by saying the word “objection” or “objection to the form.” This means that there is something wrong with the question. For example, the question may involve a vague term or misstate the witness’s testimony.
Despite the objection, the witness is permitted to answer the question. This may seem weird, since an attorney has objected to the question. But there is no judge present in the room to rule on the objection, so the witness cannot wait for someone to decide whether the question is acceptable. Instead, the purpose of stating the objection is for the court reporter to write it down on the transcript and “preserve it” for later. Later, if a party tries to use testimony with an objection at trial, the opposing party may assert the objection again as a reason why the testimony should not be used.
Privilege Objections and Protective Orders
An attorney at a deposition can also object to questions that seek information that is protected by the attorney-client privilege. Usually these questions call for the witness to share details of conversations she had with a lawyer. Once a lawyer hears such a question, she may object on the grounds of the privilege. And she can go a step further and instruct the witness not to answer the question.
Besides objecting on the grounds of the privilege, many courts have rules that limit the instances in which a lawyer can instruct a witness not to answer a question. The lawyer’s only recourse in those cases is to immediately end the deposition and make a motion in court for a protective order, preventing the questioning attorney from asking the question again in a future deposition.
But because it is cumbersome to stop a deposition because of one question, parties sometimes do one of two other things instead. First, the deposition may continue after the question that the witness doesn’t answer, and the questioning attorney may make a separate motion to compel to the court after the deposition, seeking an answer to the question or an additional deposition to get the answer. Or second, the parties may pause the deposition and call the judge on the phone, state their positions on the question, and ask the judge to make a ruling over the phone about how to proceed.
The Role of the Defending Attorney Besides Objections
Although the formal responsibilities for a defending attorney are to make objections, there are other things an attorney can do to aid a client testifying at a deposition.
First, the attorney can make sure the deponent is comfortable. A deposition can be an exhausting and scary situation. They can go all day, with seemingly nonstop questioning by an unfriendly lawyer in a cramped conference room. And many deponents have never testified before, and may be unsure about what’s normal and what’s reasonable. A lawyer can help the witness by confidently asking for periodic breaks or intervening if opposing counsel is being disrespectful.
And second, the attorney can make sure the record is clear. She can listen carefully to the questions and testimony and, if it becomes apparent that there is a misunderstanding that will result in a misleading transcript, she can point that out to the witness or opposing counsel so that the record accurately reflects the witness’s testimony.