All About Objecting To The Form Of A Question At A Deposition

I’ve written several times before about deposition misconduct, such as in the posts “Be A Potted Plant: Sanctions For Deposition Coaching and Witness Conferences” and “Can A Lawyer Interrupt A Deposition For A “Conference” With A Witness?” Today’s post is about the venerable “objection to the form,” and the extent to which a lawyer is allowed or required to elaborate on the nature of their “form” objection. As I argue below, the weight of the precedent suggests that a lawyer raising a form objections should say nothing more than “object to the form” unless the lawyer taking the deposition asks them to elaborate.

Most motions for sanctions arising from depositions involve the lawyer defending a witness interjecting themselves into the deposition with speaking objections that are either so numerous that they obstruct the deposition or are so verbose that they coach the witness into giving a different answer.

Federal Rule of Civil Procedure 30(c)(1) is quite clear: “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence …” Fed. R. Civ. P. 30(c)(2) is similarly blunt: at a deposition, “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Moreover, because depositions in federal court are conducted with the “usual stipulations” — which typically preserves all objections except for those to the form of the question — there is very little a lawyer defending a deponent needs to say except that which is necessary to preserve a privilege or to preserve those “form” objections. Courts have repeatedly sanctioned lawyers for coaching witnesses by “objecting” in improper ways that signal to the witness that they should say a question is “vague,” or that they “don’t want to speculate,” or that they “don’t know” an answer that they actually do know.

Given the above, most ethically-minded lawyers limit themselves at deposition to simply saying “object to the form” and little more. I was thus quite alarmed to come across this post by Adam Glazer which argued, “Those seeking to avoid waiver by asserting form objections may actually have it backward[.]”

Glazer quoted three separate District Court opinions that included this language:

  • “Objecting to ‘form’ is like objecting to ‘improper’ — it does no more than vaguely suggest that the objector takes issue with the question. It is not itself a ground for objection, nor does it preserve any objection.” Sec. Nat. Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 601 (N.D. Iowa 2014)(PDF copy here – I couldn’t find a link to the full opinion anywhere).
  • “[I]f a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question. Failure to do so waives the objection.” Henderson v. B & B Precast & Pipe, LLC, No. 4:13-CV-528 CDL, 2014 WL 4063673, at *1 (M.D. Ga. Aug. 14, 2014).
  • “Objections to form must sufficiently explain the objection so that the interrogator is able to revise the question and avoid the problem.” Wise v. Washington County, No. 101677 (W.D. Pa., March 7, 2014).

Yikes! That language is indeed problematic, and would certainly cause most lawyers to reconsider the usual “object to the form” practice. But there’s a big problem with that approach.

Even if we limit lawyers defending a deposition to “form objections,” as is the case with “the usual stipulations,” those “form” objections include:

“leading questions, lack of foundation, assuming facts not in evidence, mischaracterization or misleading question, non-responsive answer, lack of personal knowledge, testimony by counsel, speculation, asked and answered, argumentative question, and witness’ answers that were beyond the scope of the question.”

NGM Ins. Co. v. Walker Const. & Dev., LLC, No. 1:11–CV–146, 2012 WL 6553272, at *2 (E.D.Tenn. Dec. 13, 2012).

Any litigator who has been practicing for more than a few months recognizes that those are the same types of objections that cause the worst problems at depositions. Indeed, in LM Ins. Corp. v. ACEO, Inc., the case I quoted at length in my “potted plant” post, the primary basis for the court’s sanction order was counsel’s repeated attempt to coach the witness by objecting that a question was “speculative.” That objection inevitably prompted the witness to say they didn’t want to “speculate” about the answer, and the Court in LM Ins. Corp. held that those objections were made to coach the witness. In my own practice, I’ve seen more than a few examples of baloney objections to “mischaracterization” or “lack of personal knowledge” that prompted the witness to parrot the lawyer’s objection when they otherwise would have given a straightforward answer.

If courts require lawyers who are defending a deposition to “explain” the basis of the objection on the record, then even lawyers who are trying their very best to practice in a professional, courteous, and ethical manner will feel compelled to start blathering throughout the deposition. Worse, lawyers who aren’t so ethically-inclined will use that as an excuse to obstruct depositions and coach their witnesses. Steven Callahan was similarly concerned about the Sec. Nat. Bank of Sioux City opinion, because, he argued, “the ‘objection, form’ route makes depositions go quicker and cannot be used to ‘coach’ the witness (or at least cannot be used to coach the witness as easily as stating the ‘basis’ for the objection (e.g., ‘calls for speculation,’ ‘hearsay,’ etc.)).” I agree completely. The last thing we want is to encourage lawyers defending depositions to start “explaining” themselves before a witness answers a question.

So let’s take a closer look at each of those opinions. Of the three cases, Sec. Nat. Bank of Sioux City has by far the most thorough discussion, and is the only one of the three published in the Federal Reporter.

Sec. Nat. Bank of Sioux City was appealed and reversed, 800 F.3d 936 (8th Cir. 2015), despite Judge Mark W. Bennett’s exhausting opinion and a compelling amicus brief in support by Steve Susman and Tom Melsheimer. That said, the Eighth Circuit’s reversed on other grounds relating to timing and notice, without addressing the substance. Thus, although the case was reversed, the arguments made by the District Court are nonetheless worthy of consideration.

Judge Bennett concluded that the Federal Rules of Civil Procedure “do not endorse the notion that ‘form’ is a freestanding objection. … Nothing about the text of Rules 30 or 32 suggests that a lawyer preserves the universe of ‘form’ objections simply by objecting to ‘form.’” 299 F.R.D. at 602. Nonetheless, Judge Bennett “recognize[d], however, that not all courts share [his] views regarding ‘form’ objections. In fact, some courts explicitly require lawyers to state nothing more than unspecified ‘form’ objections during depositions. Id. at 603 (citing cases from E.D.La, D.Kansas, S.D.N.Y., E.D.Tex., and D.Minn.).

To me, the key to understanding this case comes from the full context: Judge Bennett only went into that long explanation about form objections to explain why he was not sanctioning the lawyer there for apparently using baseless form objections to obstruct the deposition, i.e., because the mere “objection to the form” is required in many Districts. As Judge Bennett concluded, “Counsel’s ‘form’ objections, however, amplified two other issues: witness coaching and excessive interruptions. As I discuss below, those aspects of Counsel’s deposition conduct warrant sanctions.” Id. at 603-04 (emphasis in original). In other words, although Judge Bennett clearly dislikes form objections without elaboration, he wasn’t presented with the question of whether the objections were actually waived or not due to the lack of elaboration, and he similarly advised counsel that “Requiring lawyers to state the basis for their objections is not the same thing as requiring “speaking objections” in which lawyers amplify or argue the basis for their objections.” Id. (For more about the details of the sanctionable conduct in that case, see this article by Bohdan Ozaruk.)

Henderson and Wise, however, decided the issue we care the most about: whether merely objecting to the form, without elaboration, is enough to preserve the objection at time of trial. Both held it was not. We thus need to consider both cases carefully.

Here is the entirety of the Court’s analysis in Wise:

Objections to Form. At several points during the deposition, Plaintiff objected to the form of the question posed but did not further specify his arguments as to why the form was improper in his objections, and Mr. Wise testified in response. Objections to form must sufficiently explain the objection so that the interrogator is able to revise the question and avoid the problem. 8A Federal Practice and Procedure § 2156, 681.

The problem for litigators, however, is that the Court’s orders don’t include the actual questions themselves, so we don’t know if the objections were truly waived or if the objections were meritless anyway. I checked the Wise docket and it seems the relevant questions and arguments were submitted by email to the Court (ECF 197), so we can’t really examine this opinion in detail.

The reference to Wright & Miller’s Federal Practice and Procedure is intriguing, and raises a frustrating conflict generated by the interplay of Fed.R.Civ.P. 30 and Fed.R.Civ.P. 32. Although Rule 30 quite clearly commands lawyers must state their objections “concisely in a nonargumentative and nonsuggestive manner,” Rule 32(d)(3)(B) says, “An objection to an error or irregularity at an oral examination is waived if it relates to the manner of taking the deposition, the form of a question or answer … and it is not timely made during the deposition.”

As Federal Practice and Procedure § 2156 recognized,

The application of Rule 32(d)(3) may be affected by the 1993 amendment to Rule 30(c)(3), which directs that objections be “stated concisely in a nonargumentative and nonsuggestive manner.” Although this provision is clearly intended to free depositions of needlessly long objections, it should be interpreted to permit sufficient explanation to serve the purposes of Rule 32(d)(3)(B)—that is, sufficient to notify the interrogator of the ground for the objection and thereby to allow revision of the question to avoid the problem.

Notably, none of the cases cited by Federal Practice and Procedure § 2156 were decided after that 1993 amendment to Rule 30(c)(3). The lone case cited that found objections to the form were waived is Batelli v. Kagan & Gaines Co., 236 F.2d 167 (9th Cir. 1956). Batelli, which was decided almost forty years before Rule 30(c)(3) was amended, said only:

Batelli’s objection, if any, related to the form of the questions propounded to Kagan which permitted him to incorporate in this deposition the answers relating to damages given in a prior deposition. However, it is one which under Rule 32(c)(2), Federal Rules of Civil Procedure, is waived unless objected to at the taking of the deposition.

Batelli, 236 F.2d at 170 (9th Cir. 1956). The last time a court cited Batelli for this proposition was in 1977, fifteen years before the amendments to Rule 30(c)(3). See United States v. Kearney, 560 F.2d 1358, 1364 (9th Cir. 1977). That’s hardly persuasive, and I think Federal Practice and Procedure § 2156 should be updated to reflect, at a minimum, the case law cited by Judge Bennett’s opinion that prohibits lawyers from elaborating on their objections to the form.

Moving on to Henderson, here is the entirety of the District Court’s analysis:

Most of the remaining deposition designation objections are meritless — so meritless that they don’t deserve further discussion. But one issue does need additional elaboration. Counsel for Defendant generally announces during the various depositions that he objects based on “form.” This objection is meaningless standing alone and is contrary to what is contemplated by the Federal Rules of Civil Procedure. Any objections that a party wishes to make at a deposition must be stated concisely on the record when the deposition is taken. Fed.R.Civ.P. 30(c)(2). But not all objections have to be made at the time a deposition is taken. Generally, only an objection that would alert the questioner of a ground for objection that could be corrected during the deposition must be made at the time of the deposition. Fed.R.Civ.P. 32(d) (3)(B). Thus, if a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question. Failure to do so waives the objection. Simply stating “objection to form” does not necessarily preserve the objection. When “objection to form” does not indicate what is wrong with the form so that the questioner can correct the problem, it becomes nothing more than a statement that the objector finds the question “objectionable.” Allowing a litigator to file an extensive brief after the fact elaborating in great detail what was wrong with the form of the question when he failed to give the questioner at the deposition any clue as to the deficiencies in the question would be inconsistent with Rule 32 and contrary to resolving an action in a just, speedy, and inexpensive manner.

I found the objections in the Henderson case (ECF 71) and I can see why the court was unimpressed. Here’s an example:

Q. It’s the chicken box picture. When you find it I’m going to hold it up for the jury to see it. That’s it. Well, you can hold it up. You might need to refer to it in a minute. My son wants me to ask you, does it look like any of that chicken has been eaten?

MR. MEDLIN: Object to form.

Q. (By Mr. C. Gower) You may not be qualified to testify about that. You’ve eaten chicken before?

A. Yes, sir, I have.

The officer is being asked to look at a box of two pieces of chicken and state the obvious.

Fed. R. Evid. 401 – Not relevant to any relevant opinion and testimony.

ECF 71, page 7. I haven’t a clue why a picture of a box of partially-eaten chicken was relevant to a case involving an 18-wheeler taking a right turn from the left-hand lane, nor why counsel felt the need to ask a witness if they thought the chicken looked eaten, but I also don’t see why this particular testimony warranted a pretrial evidentiary ruling from a federal court. If I was a federal judge managing a docket of hundreds of civil and criminal cases, I’d be more than a little bit annoyed to see this exchange land on my docket.

Another example:

Q. All right, sir. So if I can just kind of recap here. Y’all were behind them, and then the 18-wheeler puts on his left turn signal, and then the 18-wheeler gets into the left lane.· Did the 18-wheeler get completely in the left lane?

MR. MEDLIN:· Object to form.

Fed. R. Evid. 611 – Leading question / Lawyer is telling the story / Suggesting the answer or agreement.

The question is undeniably “leading,” but it’s also plainly being asked “to develop the witness’s testimony,” per Fed.R.Evid 611(c). Moreover, if the witness agrees with it, then what’s the problem?

All of which is to say: I don’t think the courts in Wise or Henderson intended, with their unpublished opinions, to require lawyers suddenly start giving speaking objections and coaching witnesses every time they encountered an arguably objectionable question. I think they’re both examples of courts being rightly annoyed by the use of “objection to the form” as a tool to eliminate every last question the objecting lawyer didn’t like. Had Wise or Henderson been presented with meritorious objections to the form, I think they would have carefully scrutinized the merits of those objections.

In my humble opinion, the proper way to reconcile Rule 30 and Rule 32 is to adopt the approach recommended by Cincinnati Ins. Co. v. Serrano: “[S]uch an objection to avoid a suggestive speaking objection should be limited to an objection ‘to form,’ unless opposing counsel requests further clarification of the objection.” No. 11-2075-JAR, 2012 WL 28071, at *5 (D. Kan. Jan. 5, 2012)(emphasis added); accord Druck Corp. v. Macro Fund (U.S.), No. 02 CIV. 6164 (RO) (DFE), 2005 WL 1949519, at *4 (S.D.N.Y. Aug. 12, 2005) (“Any ‘objection as to form’ must say only those four words, unless the questioner asks the objector to state a reason.” Emphasis added).

The whole point of Rule 32 is to avoid problems that “might have been obviated, removed, or cured if promptly objected to.” Federal Practice and Procedure § 2156. Limiting lawyers to saying only “objection to the form” avoids any problems of obstruction or coaching while putting the onus on the lawyers at the deposition to work through the problem, rather than burdening a court with the issue later.

Following that approach, when a lawyer asks a question and receives an objection to the form, the lawyer can either:

  • proceed with their question as-is, thereby avoiding any risk of coaching but running the risk of having the question excluded later for any potential objection to the form; or,
  • ask the objecting lawyer for an explanation, thereby both enabling the questioning lawyer to correct their question and limiting the objection to the grounds that were stated, but with the risk of potential coaching (or delay, if the questioning lawyer asked the witness to leave the room).

Putting the issue in the hands of the lawyer taking the deposition would eliminate the problems generated by confusion about the nature of objections while still avoiding the risk of coaching.

This issue isn’t something that should be left to a case-by-case basis, with lawyers either engaging in a free-for-all or bothering the court with every last issue at a deposition. As one court recently complained, “there [is] not consistency throughout the district courts regarding whether form objections were proper, and thus, this [is] not an issue that the Court needed to resolve for the parties. The Court explained that the parties should have recognized there are divergent viewpoints throughout the district courts, and resolved the issue on their own without pausing the deposition and contacting the Court for guidance.” Cohen v. Trump, No. 13-CV-2519-GPC WVG, 2015 WL 2406094, at *2 (S.D. Cal. May 19, 2015)(Yes, the “Trump” there is that Trump; the case is about “Trump University”).