Kate was only 37 minutes into her deposition when attorney Thurston Howell IV lodged his 23rd objection. And they were all the same: “Object as to form,” he would say with monotone arrogance as he doodled on his legal-size legal pad. She had had enough.
“What’s the form objection, counsel?” she asked.
He looked up, somewhat surprised that she asked. “It’s an objection to your question.”
“I get that,” she leaned in, “but what exactly is the problem with the form of the question?”
He looked at her in stunned silence. Was she serious? “Are you asking me to start making improper speaking objections?” He peered at her over the reading glasses perched at the end of his nose. “If so, you may want to take a break and consult the rules because they prohibit such things.”
Kate knew the rule. She graduated from a Big XII law school. “I understand what a speaking objection is, counsel. But the point of a ‘form’ objection is give the examiner a chance to cure the potential defect in the question. If all you can say is ‘object to the form,’ with no effort to explain—in three words or less—what the problem is, I’ll assume that it’s a great question that hurts your case or that you are just trying to interfere with the flow of my examination—“
Howell raised a crooked finger, “Look here—“
Kate wasn’t having it. “I know, I know … you read law at Yale with Blackstone or some other ancient oracle. But this is quite simple. ‘Object, compound.’ That’s a form objection. ‘Object, lacks foundation—also a form objection. Neither is improperly argumentative or suggestive.”
“Why don’t I make it easy for you,” Howell responded. “Let’s just agree to reserve all objections for the duration of this deposition. Would that satisfy your interpretation of the rules?”
It sounded appealing, but Kate was wise to the plan. She knew there would be no opportunity to cure the form of a deposition question at trial. “We’re not doing that, Mr. Howell. As you know, under rule 32, certain objections are reserved because some questions cannot be rephrased to cure any deficiencies. But a form objection raises an issue with the way the question is phrased and gives the examiner an opportunity to cure it. For example, to clarify a vague question or supply missing foundation. So you’re not reserving form objections. I am going to continue my examination, and if you have a form objection, I ask that you state the basis for it or make no objection at all.”
So who is correct in this situation? There is surely a difference between an objection that is improperly “argumentative” and “suggestive” because it instructs the witness how to answer (or not answer) and one that only points out the claimed defect in the question. To borrow from Kate, one that is three words or less. And is it ever appropriate to say “object as to form” over and over and over and over, never once giving any indication of what is wrong with the question even when requested? Would you do that at trial and not expect the court to ask you to be more specific? Surely not. But surprisingly, this debate still goes on.
If you practice in federal court in Utah, the debate is over. Local rule DUCivR 30-1 specifically addresses form objections during depositions. It provides that “[o]bjections during depositions to the form of the question must specifically identify the basis for the objection.” DUCivR 30-1 (emphasis added). “Objections to the form may include, but are not limited to, these objections:
- Ambiguous
- Vague or unintelligible
- Argumentative
- Compound
- Leading
- Mischaracterizes a witness’s prior testimony
- Mischaracterizes the evidence
- Calls for a narrative
- Calls for speculation
- Asked and answered
- Lack of foundation
- Assumes facts not in evidence
DUCivR 30-1. And if you are a fan of the Thurston Howell IV method, you’re sunk. The failure to state the basis for a form objection waives that objection. See id. (“If the basis for objection as to form is not timely made at the time of the question, the objection is waived.”). But keep calm, this is not an invitation to coach the witness. The rule concludes with an admonition: “Objections that state more than the basis of the objection and have the effect of coaching the witness are not permitted and may be sanctionable.” Id.
Kate takes this debate. What’s the form objection, counsel?