In Texas state court, there are three objections that can be used in depositions. According to the Texas Rules of Civil Procedure, the only available objections are: (1) form, (2) non-responsive, and (3) leading. The interesting part about objections in a deposition is that no one is there to rule on them – they are not sustained or denied. The attorney simply makes an objection and then the deposition continues on, preserving the objection for the Court to rule on later. This blog discusses each of the three deposition objections, as well as when and why each objection is used during a deposition.
Objection – Form
Attorneys will object to “form” when they feel like something is wrong with the question that was asked such that the question or the response to the question would not be admissible at trial. There are several reasons for why an attorney will object to form. Here is a list of some of the most common reasons:
- It is an argumentative question;
- It is a compound question;
- Part of the question mis-states some fact or testimony;
- The attorney is attempting to testify;
- The question assumes facts not in evidence;
- The question calls for an opinion from an unqualified witness;
- The question calls for speculation;
- The question calls for a narrative;
- The question is harassing and/or oppressive;
- The question is too general or vague;
- The question involves an incomplete hypothetical;
- The question has already been asked and answered;
- There is a lack of foundation for the question; and
- The witness would not have personal knowledge to be able to answer.
Objection – Non-Responsive
Another objection that may be used is “non-responsive.” As opposed to an objection based on form, this is an objection to the witness’ response. A deposition is conducted in question-and-answer form, so a witness should simply answer the question that is asked. When a witness starts to go off on a tangent or starts talking about something that does not answer the question that was asked, an attorney may object to the witness’ answer as “non-responsive.”
Objection – Leading
On direct examination, questions are limited to those that do not lead a witness. A leading question is one that suggests the answer that the attorney is wanting from the witness. If the question being asked suggests what the answer should be, a leading objection is proper.
As a witness being deposed, it is important to listen to the question being asked and think about the answer before beginning to talk. This ensures (1) that the witness is answering to the best of their ability and (2) that the lawyer has time to make any objections that need to be made. If the witness hears the attorney make an objection, that is a signal that something is wrong with the question, and while the witness still must usually answer after an objection is made, the witness needs to think carefully about the question that was asked and make sure to answer as completely and accurately as possible.
As an attorney taking or defending a deposition, the three objections allowed during depositions in state court in Texas under the Texas Rules of Civil Procedure are the only objections in your tool-belt — knowing when and why to properly use them is critical.