Litigation

Objections to the Form of a Question: A Partial List

By Evan Schaeffer

Lawyers who are defending depositions (or learning how to to defend depositions) sometimes like a handy list of form objections. If the form objection is not made during the deposition, this type of objection is normally waived.

Here are some typical form objections:

• "Vague." The question is unclear. The question might be too long, some of the key words in the question might have more than one meaning, or the period of time to which the questioner is referring might be unclear. (Similar objections: "ambiguous" and "confusing.")

• "Compound." The question is actually two questions.

Example: "Did you find the cancelled check on the ground and take it with you?"

• "Argumentative." Though it might be a question grammatically, the questioner is asking it not to get an answer, but to make communicate some other message to the witness.

Example:"When you arrived at the deposition this morning, had you already decided not to give me your full attention?"

• "Asked and answered." The questioning lawyer is covering the same ground a second time, asking a question to which he has already received an answer.

• "Assumes facts not in evidence." The question contains a factual statement that has not yet been established.

Example: "Did you interview the employee before firing him?" (asked when there is no testimony that the employee was fired.)

• "Misstates the evidence" or "misstates the witness's testimony." The question contains a factual assumption for which there is no evidence in the case, or the question incorrectly quotes or paraphrases what the witness has testified to in the deposition.

• "Leading." The lawyer is asking a leading question to a witness to which he is not permitted to ask leading questions.

Example: "When you proceeded into the intersection, the light was green, correct?"

• "Lacks a question." Sometimes a lawyer will make a statement rather than ask a question. The defending lawyer can object by saying something like, "Objection, that's not a question," or "Objection, the question was preceded by a statement that wasn't a question." (However, it's likely that you could get the offending comments removed from the transcript before trial even without a timely objection at the deposition.)

• "Lacks foundation." The questioning lawyer is asking the witness concerning a fact or topic about which the witness lacks personal knowledge.

Example: "What warnings were contained on the package insert?" (without establishing that the witness received and read the package insert.)

Some common objections that are not to the form of the question include irrelevance and hearsay.

If you'd like to add other objections to the list, please leave a comment. For more information on deposition objections, see my book, Deposition Checklists and Strategies (James Publishing)

Related posts:

1. "The Anatomy of the Perfect Deposition Question."

2. "When Are Leading Questions Permitted During Federal-Court Depositions?"

3. "Depositions: Don't Ignore Form Objections."

4. "Depositions: Asserting Control with the 'Nonresponsive' Objection."

Full post as published by The Illinois Trial Practice Blog on July 21, 2009 (boomark / email).