Practical Tips for Combating Speaking Objections

Although improper, speaking objections have become commonplace in depositions. In this edition of our newsletter, Bell Reporting™ provides you with some effective tips for combating speaking objections and provides you with a handy reference guide to keep during depositions. Maryland, DC, and Virginia each have their own rules for dealing with speaking objections:

Maryland

Amended in 1999, Maryland Rule 2-415 now provides that:

“If the ground of an objection is stated, it shall be stated specifically, concisely, and in a non-argumentative and non-suggestive manner. If a party desires to make an objection for the record during the taking of a deposition that reasonably could have the effect of coaching or suggesting to the deponent how to answer, then the deponent, at the request of any party, shall be excused from the deposition during the making of the objection.”

The Committee Note to Rule 2-415 states:

“During the taking of a deposition, it is presumptively improper for an attorney to make objections that are not consistent with Rule 2-415(g). Objections should be stated as simply, concisely, and non-argumentatively as possible to avoid coaching or making suggestions to the deponent and to minimize interruptions in the questioning of the deponent. Examples include "objection, leading;" "objection, asked and answered;" and "objection, compound question."”

Read the full text of Maryland Rule 2-415

District of Columbia & Federal Courts

District of Columbia Rule 30(d)(1) and Federal Rule 30(d)(1) both provide that:

Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner.

A person 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 Rule 30(d)(4).

Rule 30(d)(4) addresses conduct by a lawyer which is "in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party."

Read the full text of DC Rule 30

Read the full text of Federal Rule 30

Virginia

Virginia's Rule 4:5(d) also prohibits bad faith conduct. Rule 4:5(d) provides that the examination may not be "conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or party."

It is also important to note that there is precedent in Virginia for the entry of an order setting forth the ground rules by which depositions would be taken. In EER Systems, Inc. v. Armfield, Harrison & Thomas, Inc., 51 Va. Cir. 84 (1999),

“[T]he Court entered an order setting forth the ground rules by which depositions would be taken. That order provided, among other things, that counsel must not interrupt a witness unless the witness's answer is clearly non-responsive, argue with a witness, or comment on opposing counsel's objections. [Also,] no witness should be instructed not to answer a question unless the answer involved privileged matters and, in that event, the basis of the privilege should be stated on the record.”

When faced with an improper speaking objection, here is one strategy to employ:

If the conduct does not stop and you are confident that you are correct, it may be appropriate to terminate the deposition and bring the matter before the Court. It is possible that sanctions will be awarded for inappropriate conduct in these situations.

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