Not just a cliché loved by writers of courtroom dramas. At one point almost all law cases in common law countries were tried before juries of lay people (non-lawyers), and in the United States most still are. As a result judges have a much greater concern than in civil law countries, where there are either no juries, or the juries include judges as professional jurors, that lay-jurors (non-lawyers) were more easily manipulated by certain types of evidence and testimony – or do not weigh such testimony’s reliability properly. The result was a system that simply barred certain types of questions from being asked and certain types of evidence being introduced. The “objection!” a lawyer makes is to an improper question or to such evidence being introduced.
At a live hearing or trial, the judge will listen to the objection and then decide whether or not to allow the question (or indeed strike the answer.) Objections are more likely to be upheld, and answers are more likely to be struck if they are both improper (e.g., seek to introduce hearsay) and made by a witness for the questioning party or perceived to be of a friendly witness. Inter alia a lawyer may ask leading questions of the opposing party’s witnesses, but not of his/her client’s own.
Objections in depositions are treated somewhat differently from objections at trial. Because deposition-testimony is recorded (in at least a written transcript), any improper questions and answers can be edited out of the transcript before the deposition-testimony is introduced at trial (i.e., given to the jury) – while the judge, who is not present, does not want to be called 10-100 times in the course of a deposition to resolve objections. The result is that in depositions there are two types of objections:
- hard objections, which means that the lawyer representing the witness tells the witness not to answer and,
- soft or “for-the-record” objections, where the witness is allowed to answer, but which raise the impropriety of the question or answer, so that the question and answer can be edited out, if improper, before being presented to a jury, during pre-trial motions in limine (i.e., to exclude evidence.) If an objection is not made at the time of the deposition, the opportunity to make it is normally lost.
Of course by listening carefully to a soft objection before answering, a witness can often glean some understanding of what is wrong with or dangerous about the question being asked, and how to answer properly and fairly (though in some courts the rule is that in general a lawyer can make only short one or two word objections.) Similarly in response to a form objection, a smart examining lawyer will, if there was an genuine error of form, restate the question in a proper way, to make sure he/she gets a usable answer. However, sometimes lawyers will allow a string of improper questions when the information being elicited is not in dispute or controversial – and helpful by way of introduction and background as a way of speeding the examination (e.g., name, educational background, age, job title.)
A speaking (or spoken) objection, also referred to as a “coaching objection,” is, inter alia, a long-winded objection, that often drops a lot of heavy hints to the witness as to how to answer – it is usually regarded as very improper and can result in sanctions against the objector. However, from time to time, where opposing counsel is engaging in improper but unusual tactics, an opposing counsel may want to make a detailed statement into the record of what the tactic is, so as to ensure that this is present in subsequent motion practice – this would not normally be a speaking objection – for example if the opposing counsel is making faces, rolling eyes or loudly sighing.
Witnesses should always allow a moment after a question is asked before answering, so as to allow their lawyer a chance to state any objection he or she may have. Well known objections, especially in deposition, include the following:
Leading – a lawyer on direct examination (i.e., questioning his own witness) has chosen to ask a leading question. A leading question is one that suggests its own answer – i.e.,
“You were facing the intersection when the accident happened?”
which correctly should be phrased,
“What way were you facing?”
assuming foundation for the question had already been laid (see Lack of Foundation below.) On cross examination, i.e., questioning of the other party’s witness (or a witness hostile to his own party), a lawyer can ask leading questions. The main reason leading questions are not allowed is that the lawyer can, with leading questions, give hints to his or her own side’s witnesses as to a desired answer. This is not seen as a risk in cross-examination.
Asked and answered – sometimes a lawyer will try to ask the same question several different ways in an effort to get the witness to give inconsistent answers – and this happens more in deposition than at trial, where the general rule is that a question can be asked just once. At a deposition this is a for-the-record, soft objection, unless the question is asked so many times it amounts to harassment. Often in deposition the motivation for the repeated question is to get inconsistent answers to suggest a witness was “less than frank” and to either:
(a) make an earlier answer they did not like useless (by saying the witness contradicted himself/herself); or
(b) get a second chance to depose the witness.
It is acceptable for a witness respond,
“my answer is the same as when you asked me before …”
In deposition this is usually a for-the-record objection.
Calls for expert opinion – A question put to a fact witness that should be placed to an expert – often this will be linked to the objection Calls for Speculation. In deposition this is usually a for-the-record objection.
Calls for a legal conclusion/opinion – Almost all witness are being examined as fact witnesses, not lawyers. So for example the question:
“do you think the patent is infringed?”
seeks a legal conclusion. In deposition this objection will usually be for the record, i.e., a soft objection. A witness can preface his or her answer with a statement (assuming it is the case) that he/she is not a lawyer and thus not qualified to give an answer. (However, the authors’ have had the amusing experience of this objection being repeatedly made in the deposition of a lawyer about his role in a legal proceeding; it resulted in quite useful quotations for subsequent motions.)
Form [of the question] – This is a broad objection that is complaining that the question is somehow stated in a way that makes it a tricky or unclear question to answer. In a deposition it is usually a “for the record” objection. There are more specific objections to form, such as “vague”, “compound”, “assumes facts not in evidence”, “calls for a free narrative.” A “form” objection may simply be based on the unfair way the question was put. In many courts a simple “form” is not sufficient to be an effective objection at a subsequent motion in limine (exclusion) hearing; since it does not tell the other lawyer what the issue is so that he/she can modify the question; moreover, some lawyers use this to distract and discombobulate opposing counsel – muttering “form” at every question, so that the examining lawyer is constantly distracted by wondering “what the **** was wrong with that then?” The result is that many courts require the specific form objection to be stated. A wise examining lawyer will modify and restate a question if there is a genuine problem with its form.
Compound – Asking two questions in one for example: –
“did you go to the meeting and who else was there??”
In deposition the objection is typically “for-the-record”, but usually, unless the examiner is a fool, he/she will restate the question, breaking it into two. Sometimes, to speed the examination, a lawyer will not object to innocuous compound questions, especially at the beginning of the deposition, for example background questions such as,
“where did you go to university and what degree did you get?”
Nonetheless, it is wise not to get into the habit of asking compound questions, even when convenient.
Hearsay or – Question calls for Hearsay – Hearsay is an answer where the witness says:
“John told me that …”
So a question that is in effect,
“what did John tell you?”
calls for hearsay. The main point is that ‘second hand’ information is often inaccurate, and someone wants to what John knows should “ask John.” In deposition this is a “for-the-record objection.” If a witness is uncertain as to what say “John” may have said about something, the wisest response may be to say so, and suggest that the examining lawyer “ask John?” In deposition hearsay can be elicited from a witness because it may help in finding introducible evidence, i.e., the answer can be followed up by investigation of the information it contains. However, there are a large number of exceptions to the hearsay rule, both in English law, the US Federal Rules of Evidence, and the rules of all common law legal systems – it is not an absolute bar. If a question asking for hearsay is likely to be asked, counsel should be prepared to identify the exception he or she intends to rely on.
Lacks a question – the examining lawyer made a statement that did not contain a question. An examination or cross-examination is not a debate – the lawyer asks questions and the witness answers. In deposition this is usually a “for-the-record” objection.
Question calls for a free narrative – the question asks the witness to tell a story for example,
“what happened on Tuesday?”
The objecting lawyer is worried about a long rambling open answer from his/her witness and would like a very specific and limited response when this objection is made – as in,
“I went to work.”
A wise witness can answer with a question,
“what in particular on Tuesday do you want to know about?”
In deposition this is usually a for-the-record objection.
Assumes facts not in evidence – the examining lawyer is asking a question that includes an implicit assumption of fact. The classic example used to teach lawyers is,
“when did you stop beating your wife?”
A witness does not need to answer the question as put – he/she can say
“I have never beaten my wife.”
or he/she can also answer with a question,
“is it that so/true – [assumed fact]?”
In deposition this is usually a for-the-record objection.
Argumentative, Harassing – the examining lawyer is trying to pick a fight with the witness by asking questions like,
“when you came here this morning, had you already decided to dodge my questions?”
If it is seriously argumentative or abusive in a deposition this is usually a hard objection.
Foundation, lacks proper foundation – A question that lacks context and a logical basis to establish that the witness have direct knowledge of the answer. So for example, if there was a car accident, the question,
“did the green car run the red-light?”
lacks a foundation, if the examining lawyer does not first ask the witness,
“were you there when the accident happened?”
“could you see the traffic light?”
“could you see the green car?”
“was it stopped or moving?”
“could you see the light facing the green car?“
“did you see the accident?”
“what colour was the traffic light when the green car entered the intersection?“
this string of questions establishes the foundation for that witness to say whether or not,
“the green car ran the red light.“
The core issue is that if there is no foundation the answer could be based on hearsay – what another person told the witness about the accident. A question that lacks a foundation can also create a false memory – put an idea into the witness’ head. In deposition this is usually a “for-the-record” objection. However, if there is a problem with foundation, a wise questioner will usually rephrase and re-ask the question in an proper way.
Hypothetical, Incomplete Hypothetical – it is an improper question to ask a fact witness a hypothetical, this will usually be combined with an “objection, calls for speculation.” Since hypothetical questions can be put to expert witnesses, there may be an “objection calls for expert testimony” too. An examining lawyer can ask an expert hypothetical questions – for example –
“if this was the case, then…”
However, the hypothetical has to be complete, i.e., it must set up the complete set of factual assumptions that the expert need to be able to answer and not require him/her to supply elements of the question. The best response for a witness is to make clear that his/her answer is to a hypothetical based on certain assumptions and not a factual answer, so that his/her answer cannot later be taken out of context – i.e.,
“that is a hypothetical question, but assuming that A is ___ and B is ___, then maybe C would be ____, but as I said that is a hypothetical with a lot of assumptions.”
In deposition this is usually a for-the-record objection.
Misstates/Mischaracterizes the witness’ prior testimony – the examining lawyer has asked a question that tries to sum up the witness’ prior answers, but with a spin that suits that lawyer’s case. A typical question of this type is:
“so what you have said is that…?”
or
“earlier you explained that…”
The danger with this type of question is that it may misrepresent what the witness actually said. It is reasonable for a witness to respond:
“please don’t put words in my mouth – I told you what I told you.”
The witness can also ask for the testimony to be read back to him/her, usually by the court reporter, i.e.,
“I’m not sure that’s what I said, can the reporter read back to me what I said.”
In deposition this is usually a for-the-record objection unless there is a gross misrepresentation or mischaracterisation.
Outside of the permitted scope of the examination – In deposition this is usually a hard objection and is very unusual. It arises when there is either an agreed scope of questions that the witness can be asked in deposition, or the court has issued an order making certain subjects “off limits” for the deposition or excluded them in a pre-hearing or pre-trial motion in limine. It may often arise in a 30(b)(6) deposition.
Relevance, Materiality – Here the lawyer is objecting to questions that are not relevant to the lawsuit. In deposition this is usually a for-the-record objection unless,
(i) the witness has been produced to answer questions on a specified subject,
(ii) the questions are very irrelevant and have nothing to do with the case whatsoever, but this would be unusual.
The objection may be to what is known as a fishing expedition, i.e., an attempt by the examining attorney to look for other random issues that could form the basis of new unrelated claims. This is usually a soft, for-the-record, objection.
The document speaks for itself – the examining lawyer is asking questions that characterise a document he/she has handed to a witness, for example a patent, contract or license. This is an unusual objection and it usually means that the examining lawyer is trying to get the witness to agree to an interpretation of the document that favors his/her client, as in:
“is this a …”
A wise witness will respond by reading from the text what it “says for itself.” In deposition this is usually a “for-the-record” objection.
Question mischaracterizes … or Objection, please put [the testimony/thing] before the witness – a very improper tactic is to ask about something that the witness has not seen, someone else’s testimony, an item of software code, or a component or report, especially when that question mischaracterises that thing or testimony. One common tactic is to ask about what a superior allegedly said, hoping the witness will be too worried to disagree with what the examining lawyer says was that boss’ testimony. Such an objection would usually be a for the record objection, unless the mischaracterisation is very improper. The best witness response to this type of question is:
“can I see it? – show it to me?”
and
“if you do not show it to me you are asking me to answer a hypothetical and I don’t want to speculate.”