When I work with law firms around the country on deposition training, there is one question I get repeatedly from new attorneys and veteran lawyers alike:
How do you stop an attorney from making speaking objections?
Speaking Objectors — “S.O.’s” as I refer to them — are essentially deposition bullies. They do whatever they can to muck up your record and coach their witnesses so they’ll perform better than they otherwise would. S.O.’s become more obstructive the closer you get to good admissions. They are usually fully aware of the effect their speaking objections have on the deposition. They know what they’re doing is contrary to the appropriate standard of conduct by attorneys. And they don’t care!
So why do they do it?
Maybe they do it because they are showing off for a client. Or because they have been directed to by someone at their firm. Or perhaps because they are soothed by the sound of their own voice. Or possibly because they lack training.
I’ve always been of the view that S.O.’s do what they do mostly out of fear. They fear you’ll take a strong deposition. They fear they have not prepared their witness well enough. They fear a client’s reaction if they don’t exhibit fighting behavior at the deposition. And they often fear the truth…
What they typically do not fear are consequences for obstructing the deposition.
Whatever the reason for the speaking objections, it’s up to you to stop the behavior, or risk the consequences of a coached witness and muddied deposition text.
My Process for Stopping the Speaking Objections
- Take it Outside. The first time an S,O. makes a lengthy speaking objection, I ask the attorney to step outside the deposition room. Once out, I explain my concern that they have made a speaking objection, and I ask them not to do it again. I also explain that the reason that I asked them to step outside the room — instead of putting this discussion on the record — is to spare them any embarrassment in front of the witness (often their client) and to avoid having to take up transcript space with an issue I hope can be resolved quickly. I tell them that if they make any additional speaking objections, I may be required to terminate the deposition and contact the court.
- Put it on the Record. On the second speaking objection, I put on the record the details of what transpired in the previous discussion outside the room. I remind the S.O. — on the record — of their obligation not to coach the witness by making speaking objections. I let them know that if they make any additional speaking objections, I will terminate and continue the deposition, so that I have an opportunity to contact the court — where I will request that the judge instruct opposing counsel on the prohibition against speaking objections and ask for any additional relief the court deems appropriate. Sometimes I will mark as an exhibit a case in my jurisdiction or a court rule or guideline discussing the proper manner of objecting.
- Take Action. If my S.O. makes a third speaking objection after being warned, I calmly terminate the deposition for that day and continue it (doing both on the record) until such time as the court has had an opportunity to take up the matter with the attorney. Sometimes I call the Duty Judge or the Magistrate on duty and ask the court reporter to read back the speaking objections. But in the majority of instances where I have gotten to Step 3 (less than 15 times in 25 years), I have filed a motion with the court, titled something like “Motion to Ask the Court to Instruct Opposing Counsel in the Proper Method of Raising Objections at Depositions.” The title sounds a little long — perhaps even comical in its length — but the title is designed to get attention. And no judge has ever turned my request aside. I attach copies of the speaking objections and any relevant statements made on the record. If I am aware that the S.O. has acted in similar fashion with other counsel, I will obtain transcripts from their depositions and attach them as well. As far as relief, I ask for nothing more than that the court instruct the S.O. on the proper method of objecting at a deposition. I never ask for sanctions because those quickly become the focus of the motion. In my experience, most judges are more adept than I at fashioning a sanction, or at threatening sanctions.
Is there a risk to terminating a deposition? Sure. Your obstructive opposing counsel will likely go ballistic. The S.O. may threaten that you will NEVER get this deponent back for additional deposition time if you leave the deposition now. These threats are designed to test your resolve. I never give in to these threats.
Of course, I have to be certain that I’m asking clean, clearly phrased questions. But if I am, an obstructive opposing counsel may render the transcript useless for trial, if I allow these speaking objections to continue. So, I don’t waste time asking the most important questions unless I can do it with my opposing counsel acting appropriately.
On occasion, my actions in beginning to pack up my things will bring an emphatic apology from the S.O. and a request that I remain and complete the deposition. If my S.O. indicates in some form that they are prepared not to make lengthy speaking objections, usually I give them one more chance. If they do it again, I leave.
The added benefit I’ve found in treating S.O.’s in this fashion is that it stops me from second guessing myself. I always know what to do when it happens, and I do it automatically. It’s important that you find a process that works for you.
Try these suggestions and see if you can’t silence the Speaking Objector as well.
Hope this helped.
