Objecting to Form

Objecting to Form

Attorneys participating in a deposition with their client will often encounter an objection to the form.  They can either be the person using the objection or the person explaining the question, but the objection is likely to find its way into the deposition, as there will likely be at least one question asked that an attorney has an issue with.  Objecting to the form of the question encapsulates many common objections to the way that the question was asked, but it has become the standard objection in a deposition based on the way that the courts have created some parameters on how attorneys object as to not lead their clients.  Yet it is often unclear how the other party should reframe the question to avoid another objection.  The objection has become a topic of discussion among attorneys and clients alike.  This article will explore the idea of dispositions and objections, as well as the objections contained within the objection to form, before turning to a discussion on whether the objection should be used in depositions. 

Depositions and Objections Explained: 

A deposition is a formal interview of a party or witness that is administered under oath.  It allows the parties in a case to see how the other party will answer a question at trial.  It also gives the parties a sworn statement to compare to the statements the party will make at trial and can help attack credibility.  A deposition request will be made by a party that would like to gather evidence from the other party or a witness that the other party will use.  Occasionally, a party may request to depose their own witness to ensure the credibility and subject matter of a witness. However, the majority of the time, a deposition is of one of the parties to a dispute.  A deposition will typically have the following characteristics: 

  • Introductory Issues: A deposition will begin with introductory issues and questions.  The lawyers in the room will often chat about any issues that may arise and may agree to ask or avoid certain questions or subjects.  This is also typically when the person being deposed will be sworn in and the rules around the deposition will be determined.  
  • Administrative Professionals: Because the deposition is a tool that either party may use in a case, it needs to be properly recorded to be admissible in the trial if necessary.  This means that the deposition is recorded by both a videographer and a court reporter.  This helps ensure that a neutral party is recording the deposition exactly as it happened.  
  • Personal Background: Especially when a deposition is of a non-party witness, there may be a lot of questions about the person’s background to ensure that the parties understand the relevance and background that will influence how much the witness knows about the event and what their participation was.  Some of these questions may be used to establish bias or other issues with the testimony later on.  There will likely be some irrelevant questions within this section of the deposition.  
  • Case Questions: Finally, the majority of the deposition will focus on the questions revolving around the witness’s role in the case. For a party, this could go on for quite some time. For a witness about an aspect of the case, this may be brief.  This is likely where the parties may make objections.  

Speaking of objections, it is important to understand what an object is and why it is used.  An objection is a formal disagreement with either a question or answer during the trial or other sworn testimony.  An objection typically revolves around the rules of evidence and how the question or answer violates a rule.  At trial, a judge will often rule to include or exclude the elements of what was objected to.  Objecting will also preserve the right of that party to appeal if they believe the evidence was included or excluded wrongfully.  Objections are key to the process of law and can protect the rights of a party. 

In depositions, objections are important because depositions are often more intrusive and thorough than testimony at trial, so it can help to preserve an objection to a question for trial and can protect a party from revealing a possibly damaging answer.  Because there is no decision-maker at a trial, the parties will often continue with the deposition and may skip or rephrase the question.  The most common objections in depositions include: 

  • Relevance: A common objection to a question at a deposition is objecting on the basis that the question or answer would be irrelevant to the case.  This is common at the personal question stage and is often made to stop a witness or party from stating something that could be damaging about themselves.  This objection will often only be honored if the information sought is obviously completely unrelated to the case or the witness’s relationship to a party or the case.  
  • Privilege: Legal privileges help protect the parties and witnesses from revealing specific kinds of information. The most common is attorney-client privilege, which protects the client and attorney from needing to reveal the discussions that happened to receive legal counsel.  This objection can be made when a party is asking about the communications between a client and an attorney.  Other privileges include communication between spouses, doctors, and clients, and a variety of other relationships with a level of confidentiality.  
  • Form: Form is the most likely objection in a deposition.  This is an objection to the form of the question that was asked.  It encapsulates a variety of objections that are typically made in a trial, which will be outlined below.  When a party makes a form objection, they are asking the other party to either reframe the question or avoid it.  Some attorneys prefer a blanket form objection because it does not reveal to the party being questioned what the objection is to guide the answer, while other attorneys prefer a more specific objection.  

Objections allow a party to avoid sharing damaging information and protect parties from having to share irrelevant information.   

The Objections Within an Objection to Form: 

Objections to form include a variety of issues that hold the question asked under scrutiny.  It often means that the party that asked the question will have to rephrase the question in a way that does not violate the laws of evidence in some way.  An important distinction with this objection is that it should only be made as an objection to a question and not an objection to an answer.  Understanding this distinction is an issue that will be discussed as a part of the conversation surrounding the controversy with the form of objection.  To understand this objection, it can be helpful to look at the underlying objections that may be the true objection.  These objections include: 

  • Asked and Answered: This objection is used when the party asking the question has already asked for the information in a previous question and the person being deposed has already answered the question.  This can happen if an attorney wants to ask for similar information differently, but it can be a reason to either reframe or skip the question. 
  • Argumentative: This is often the objection that the party is making when the issue is that the person asking the question is arguing about the case through their question.  Usually, this type of question will not ask much of the witness, so it will often be rephrased or skipped.  
  • Leading: This is a common objection when a party is questioning their own witness.  A leading question is one that suggests the answer to the question within the question.  This objection will happen pretty quickly because these questions are easy to spot through a yes or no answer and the question contains information that the witness has not yet shared.  
  • Compound: This is another common objection to the form of a question because it is an objection based on the fact that the question contains two or more questions.  These types of questions can be difficult for witnesses to answer, so the person asking the question will usually split the question into two or more questions.  
  • Legal Conclusion: This is a more complicated objection, but it involves objecting to a question that asks the party answering to draw a conclusion that they are not qualified to do.  This is common for lay or fact witnesses that are testifying about their experience with the case and the questioner asks them to draw a conclusion about fault or other issues that they are not qualified to testify to.  

Objections to form include these and more.  It is important to make these objections because they cannot be made for the first time at trial.  Alternatively, the objections to the content of an answer may be made at trial, and it can be okay to not make these objections at depositions.   Understanding this difference is important, but many times a blanket objection to form is used, and the distinction of which objection to preserve is not made.  

To Use or Not to Use: 

As mentioned earlier, there is controversy surrounding the objection to form, as it does not indicate which objection the party would like to preserve, and it is used to object to the content of an answer at times.  On the other side, making specific objections at a deposition can influence the answer given by the witness and can interrupt the flow of the deposition.  Once the party decides to make the form objection, they will need to either make a general form objection, or they can make a specific objection based on why the form is incorrect.  Several factors can go into this decision.  These factors include: 

  • Form v. Content: It is important to distinguish if the issue comes from the form of the question or the content of the answer.  Form, as indicated above, is an objection to the question itself, which can be corrected by rephrasing the questions or asking for the same information in another way.  Objection to the content of the answer is more of a question of the information in the answer, and it cannot be fixed by the question being reframed.  This can include issues with speculation and hearsay.  Once a party has determined it comes from the form of the question, an attorney can make the form objection.  
  • Rules: Occasionally, the attorneys or the court rules will indicate if the parties need to state the specific objection or can use the standard form objection.  In some states, the parties cannot preserve their objection for trial if they do not state the specific objection.  Additionally, the attorneys may agree that the objections need to be specific or broad depending on their needs.  
  • Leading: There are instances where a specific objection may end up leading the witness to an answer or how to avoid sharing the information.  For example, if a party objects to the form of a question by stating that it assumes facts, not in evidence but the party answers the question, they could say something like, “I do not want to assume any facts, so I do not know.” This type of risk is one that many parties hope to avoid, so they agree to use common objections.  

Finding a way to object effectively to preserve the objection without giving too much to a client is a skill that many attorneys deal with every day.  It is a balance that can be difficult to achieve, but perfecting the skill can lead to spectacular results.  While being deposed, many witnesses and parties will face objections to questions and answers, and knowing that their attorney is protecting their interests will help them feel confident in their answers.  

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