Objections to Form of the Question at Depositions (With a Discussion About Objections to Leading Questions)

"All objections, except those as to the form of the question, are reserved."  This sentence, or one substantially similar to it, may be found at the beginning of every deposition.  But what are objections to the form of the question?

Evan Shaeffer at The Trial Practice Tips Weblog shared a list of objections to form in a recent post.  The post lists seven different objections – vague, compound, argumentative, asked and answered, assumes facts not in evidence, misstates the evidence, leading, lacks a questions, lacks foundation – and gives examples of several of the objections.   It is a handy list that you may wish to keep as a part of your materials on the law of depositions.  Of course, you can always come back to this site and find the link under the  "Civil Procedure" category or by using the "Search" function.

Many people get upset when you object to leading at a deposition.  And they should, assuming that they are taking the deposition of a party opponent or another person that they would be allowed to lead at trial.  The law permits those witnesses to be lead during depositions.  But the deposition of a co-party or a third-party witness is different.  Why?  Because they would not be able to lead that witness at trial (unless they are cross-examining that witness).

But why, you might ask, would you care?  It is just a discovery deposition.

This is why.  Except as to expert witnesses, there is no such thing as a discovery deposition in Tennessee absent an agreement of the parties.  Outside of these limited circumstances, every deposition can be used at trial under the situations described in the rules of civil procedure and the rules of evidence.  Here are the relevant rules that should give you pause for concern.

Rule 32.01(3) pf the Tennessee Rules of Civil Procedure provides that "the deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that the witness is “unavailable” as defined by Tennessee Rule of Evidence 804(a)."

Rule 804(a) of the Tennessee Rules of Evidence states that unavailability includes those situation where the declarant

(1) Is exempted by ruling of the court on the grounds of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) Demonstrates a lack of memory of the subject matter of the declarant’s statement; or

(4) Is unable to be present or to testify at the hearing because of the declarant’s death or then existing physical or mental illness or infirmity; or

(5) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process; or

(6) For depositions in civil actions only, is at a greater distance than 100 miles from the place of trial or hearing. .

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

You never know if that non-party witness may be dead by the time of trial.  Or will have moved out of the subpoena power of the court.  Or suffers effects from a debilitating stroke.  Thus, a judgment call has to be made whether to allow your opponent to lead  non-party witnesses during direct examination at depositions or whether you will lodge an objection to the form of the question for leading. 

How do you do it?  "Objection, leading."  Response:  "This is a discovery deposition.  Don’t be a jerk."  Reply:  "Will you agree that I have a standing objection to every leading question you ask?  If, so, I will be happy to not interfere with your questions and object to every leading question." Sur-reply:  "Sure, jerk."