Thursday, January 31, 2019

Effective Deposition Objections

Lawyers (and unrepresented parties) in litigation are tasked with finding out the nature of actual disputes. They accomplish this in the process that the legal profession has named "discovery." Each legal process begins with a complaint or a claim of some kind. The old adage that "there are two sides to every story" comes to mind. Occasionally, the response to such a claim will be to provide what is sought or claimed, but more often there are defenses raised and the process begins a course that could end up with a trial. 

Discovery is supposed to help a party to that dispute reach a better understanding of the dispute and the people or other entities involved. It is a process of asking questions, learning, and often then asking new questions based on what was learned. It is a process about which lawyers often complain. I have met several lawyers who believe themselves to be quite gifted regarding discovery, and yet scornful of the perceived failings of various other lawyers in that process. 

Perspective is a critical word in litigation. Different parties and their attorneys will likely see various facts and thoughts differently. That is a natural effect of human nature. Part of the effort in discovery is to explore those perspectives and the foundations for them. The goal is to learn both what the other party or witness knows and how they came to know it. It is also usually of assistance to know how they reached any conclusions that they express. Discovery is about gleaning information. 

It is important to remember that there are a variety of rules regarding what can and cannot be evidence at trial. These are generally expressed in an evidence code or a set of evidence rules in a particular jurisdiction. There may be requirements that require original documents instead of copies, exclude various statements made by people not presently testifying (repeating what someone else said), or require that certain foundations be established before something can be admitted as evidence. It is generally true that the standards and restrictions on what may be evidence are more strict than the standards as to what might be asked in discovery. Thus, much may be learned in discovery, but possibly not everything learned can be admitted. 

The process is thus challenging. It becomes more challenging because that deposition taken for discovery might later be used at trial. Because the lawyers involved recognize that potential exists, they are likely to strive for that deposition to be as helpful to their client's interests as possible. And, if someone is asking questions that are not appropriate, the opposing party or attorney should voice an objection. The point of the objection is not to conduct an argument at that moment in time, although they sometimes devolve into that. The point of an objection is for one party/attorney to put another party/attorney on notice that she or he believes either a question or an answer is inappropriate or inadmissible. 

But for some reason, there is persistent misunderstanding about what kinds of objections are critical in a deposition. The failure to raise certain objections during the deposition may result in the party waiving the right to raise that objection later. But, because of the discovery purpose, and the notably lower standards that govern what can be discovered as compared to what can be evidence, the failure to raise many other objections may very well not result in waiver. 

The Florida First District has held “Failure to object to questions and answers during a discovery deposition does not amount to a waiver of the right to make objections thereto at trial except in limited circumstances.” Objections may later be raised at trial, if the deposition is admitted as evidence, as if the witness were “then present and testifying.” Waiver occurs only if “the ground of the objection is one that might have been obviated or removed if presented” at the deposition.” See David v. City of Jacksonville, 534 So.2d 784 (Fla. 1st DCA 1988).

As a side note, the Florida Courts have no purview or authority for defining or enacting rules for practice before the OJCC, but the duly enacted Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications (R.Pro.Work.Comp.Adj.), Chapter 60Q, Florida Administrative Code, address discovery, specifically depositions, and how those may be “taken and used.” Rule 60Q6.114(2). The R.Pro.Work.Comp.Adj. adopt and incorporate by reference the “Florida Rules of Civil Procedure.” Thus, while written and adopted by the Court for practice in the Article V. Courts, those rules have been incorporated and are likewise rules of this Office. Two provisions are worthy of review. 

Rule 1.330(d)(3)(A) provides:
"Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time."
Rule 1.330(d)(3)(B)provides:
"Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be obviated, removed, or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition."
Thus, the general rule is that failure to raise an objection is not usually waiver. But, it is incumbent upon an objecting party, when voicing a “form” objection to provide sufficient information to allow counsel to understand the basis for the form objection, and the opportunity to cure that error. See, Gatlin v. Argonaut Ins. Co., 360 So.2d 459 (Fla. 1st DCA 1978) ("Had they been objected to when asked, Mrs. Gatlin's attorney would have had an opportunity to reframe them."). See also Evans v. Perry, 161 So.2d 27 (Fla. 2nd DCA 1964); Clairson Intern. v. Rose, 718 So.2d 210 (Fla. 1st DCA 1998); U.S. Sugar Corp. v. Henson, 787 So.2d 326 (Fla. 1st DCA 2000); Weyant v. Rawlings, 389 So.2d 710 (Fla. 2nd DCA 1980); State v. Wells, 538 So.2d 1292 (Fla. 2nd DCA 1989).

In this regard, it is likely not sufficient to "object to form," as that does not provide edification to other parties as to what form failure is perceived. If the objection is to "leading" (a question that suggests the answer: "and you were at the bus stop looking at the intersection at that time, correct?"), it will likely not be sufficient to merely say "objection" or "object to form." It would be more appropriate to say "objection, leading." Then, the lawyer asking the question can re-ask the question in a more appropriate format ("were you looking at the intersection at that time?")

The same is true for "compound questions" (did you see Mr. Smith on Wednesday or Thursday either at the store or on the bus?). A single word "yes" or "no" answer to a compound question may leave everyone in doubt as to which question is being answered. If the question above was answered "yes," it narrows down that Smith was seen, but does not help to determine exactly where or when. Questions such as this are often encountered in expert depositions regarding medical treatment or recommendations. And, there may well be no harm. For instance, if the medical records show an office visit in April and the next in July, a seemingly compound "did he return to see you in May or June" might yield a "no" and save time in the process. However, in other contexts, a compound question may create confusion. A simple "objection" is not sufficient. It would be more appropriate to say "objection, compound question."

The objection to form is also important when questions are simply confusing or convoluted. In one somewhat famous quote, a lawyer struggles to get to the point:
LAWYER: When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?
To which the opposing counsel is said to have replied:
OTHER LAWYER: Objection. That question should be taken out and shot.
Many will agree with that proposed fate for this confusing and rambling question. However, that objection does nothing to illuminate why that question was terrible. The objection makes a good point, and is humorous. But, though one might wish otherwise, sometimes the lawyer or party asking the questions is not so quick to spot the issue her/himself. 

More appropriately, the objection there could have been "object to the form, the question is confusing." It is not that there is a "right" phrase to state an objection, but that what is stated regarding such a form question must be sufficient to alert the person asking the question that there is a flaw or issue that needs to be addressed. The point of the objection is to allow the lawyer or party asking questions to fix the perceived flaw. In the event a lawyer or party fails to enunciate a competent objection to such a "form" question, it is probable that a later objection will be deemed waived. 

The right time to find out about such an issue is not at trial. By then, the witness that was deposed may well be unavailable to clarify any confusion or ambiguity from such a question. The parties or attorneys may find themselves in legal arguments and disagreement at trial over the meaning of questions and answers. That creates doubt for all involved. The better practice for "form" objections is to make the point during the deposition. This allows the person asking the questions to be forewarned and to perhaps ask a different question.

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