Over the last two weeks, this blog has discussed the misadventures of a California attorney was sanctioned for inappropriate deposition objections. Now seems like a good time to discuss proper versus improper deposition objections so you may avoid these same mistakes. Depositions themselves seem to be a honey pot to attorneys as the presence of a court reporter to transcribe their various transgressions appears to actually exacerbate as to opposed to ameliorate the problem.
Let us start at the very beginning. “Any objection during a deposition shall be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under paragraph (3).” NRCP 30(d)(1). The language of the rule seems easy enough to grasp but apparently is not.
It is only necessary to object at a deposition where the “form” of the question (not the nature of the question) is objectionable and a “seasonable” objection would provide an opportunity to correct the form. Questions to which timely objections should be made during the deposition include those which are leading or suggestive; ambiguous or uncertain; compound; assume facts not in evidence; call for a narration; call for speculation or conjecture; or argumentative.
In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 618 (D. Nev. 1998) (citation omitted). MJ Leen was more explicit in an Order re Emergency Motion to Forbid Improper Objections where she was inclined to have counsel write the below 500 times on a blackboard.
I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, non- argumentative and non-suggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as “if you remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you understand the question” are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.
Admittedly, both In re Stratosphere and MJ Leen’s unpublished order interpret the federal equivalent of NRCP 30, however “this court has recognized that federal decisions involving the Federal Rules of Civil Procedure provide persuasive authority when this court examines its rules.” Nelson v. Heer, 121 Nev. 832, 834, 122 P.3d 1252, 1253 (2005) (citation and quotation omitted).
Despite this relatively clear In re Stratosphere guidance, I still encounter attorneys who labor under the belief the only appropriate objection during a deposition is “object to the form of the question.” I have then been accused of coaching a witness and participated in mid-deposition conferences with special masters for stating the very objections noted by In re Stratosphere. “Objection to form” is a worthless objection as it does not provide any information to the deposing attorney as to the perceived deficiency in the question. As noted by In re Stratosphere, an appropriate objection gives the deposing attorney notice of the perceived problem with the question and an opportunity to correct it should they wish.
I suspect a few of you might now be thinking “but this is not how it is done in reality” or “this is not how it works in my jurisdiction.” As to the jurisdiction, this blog focuses on Nevada, things may certainly be different in your jurisdiction but FRCP 30 has been widely adopted. If, however, you appear in a Nevada case, be aware of the local rules. Second, as to the reality of depositions, this is how the courts expect depositions to work, even if counsel sometimes do not meet these expectations. This blog often describes what can happen to counsel or their clients when objections stray beyond these narrow confines. You can be professionally shamed by the courts, such as occurred in this month’s prior posts. The same could happen in front of the client and contribute to you being reassigned from a case as discussed in this prior blog post. Your sins need not even approach the level displayed in these two cases to warrant sanctions, as discussed here. Follow the rules and you can largely avoid these problems, which may result in cleaner, quicker, cheaper depositions.