Using Deposition Objections as a Band-Aid
Are you using objections as a band-aid for a lack of preparation?
You may be sitting in a deposition where you’re taking the deposition of the defendant. Then as you’re asking tough questions or questions that get to the heart of the case, the defense lawyer would suddenly pop up and say, “Objection Form.” Defense lawyers use this as a tactic to send a message to the witness. The defendant would then respond by saying they don’t recall.
This is a cycle that we see pretty often in depositions and it can get frustrating as a lawyer. But what happens when you’re using the objection form as a band-aid for preparation?
In today’s episode, we are going to look at this very mechanical piece of depositions: objections. Specifically, we’re going to be looking at the objection form used during a client deposition. In Texas practice, for example, this is the only permissible objection under our civil procedural rules, and this is the same way in most jurisdictions.
And so, you want to make sure that the client gets the questions that they can answer, or at least neutralize them. But you don’t have to jump in and hit the Objection Form button. That’s why it’s very important to have a checklist of things so you come to depositions confident and prepared.
In this episode, you will hear:
- What happens if you don’t have enough depositions
- When you’re raising the red flag, everybody sees it
- The importance of creating a checklist for deposition
- How to create a checklist to prepare for deposition
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Episode Transcript:
Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick.
This is a podcast dedicated to lawyers who are going to trial, who are getting ready for trial, who are preparing cases to win, and also with the mindset of knowing what is [00:01:00] on the jurors minds. In today’s episode, we are going to look at a very mechanical part of depositions. Objections. And specifically, to narrow this down, we’re going to be looking at objection form that you use during a client deposition.
And in Texas practice, under our civil procedural rules. This is the only permissible objection. And it’s that same way in most jurisdictions. That’s the same rule. But I just want to let you guys know we are not going to venture down the road of impermissible objections as we could be here all day. And this This podcast is focused on your client, your case, and how you can prepare it better.
So not going to talk about using objections for defense witnesses or experts [00:02:00] because what we’re really looking at today is are we using objections as a band aid for a lack of preparation? So what am I talking about a band aid? What do you mean? Well, Let me just set the scene here for you because we’ve all experienced this where you may be sitting in a deposition and you are taking the deposition.
You’ve got a defendant. And what I am thinking of is a situation where I’m sitting, taking a deposition of a driver in a commercial vehicle case. And when I asked tough questions or questions that really got to the heart of the case, like, do you accept any responsibility? The defense lawyer would pop up and say, objection form.
And then The driver would respond. I don’t recall. I don’t know. And that’s it. That would continually happen where basically tough question, objection form, defense response. I [00:03:00] don’t know. I don’t recall. Very frustrating as a lawyer, but what obviously is a tactic by the defense lawyer to send a message to the witness.
So what happens when we’re using objections as a band aid to preparation? Well, So what we’re really talking about here is giving the opposing counsel a second bite at the apple. Therefore they’ll keep refining their question until they get a clean question. And this is super important when we have cases that are styled, where motions for summary judgment are regular practice.
So a couple episodes back we had Michael Neff who joined us as a guest and he talked about how important it is in premises liability cases. Nearly every single one of those cases will face a motion for summary judgment. So So, having the clear testimony in deposition [00:04:00] is really crucial. And that’s exactly what we’re talking about.
We want to make sure that the client gets the questions that they can answer or at least neutralize, but you don’t have to jump in and hit the button, objection form. So then you’re sending a message and the client will hopefully fend off or we don’t really know. But the point is that we’re using that basically as, Oh geez, I forgot to talk to them about this.
Right. really tricky question or this particular part. So I’m just going to say objection form and we’ll just fix it later. That’s the problem. You may not be able to fix it later, right? That’s that motion for summary judgment we’re talking about. And premises liability is a good example, but A lot of other cases also face the same thing.
Employment cases are another place where motions for summary judgment are pretty well standard. I had another lawyer’s talk to me, mold cases, and on specific issues as well, where motions for summary judgment may come for your specific [00:05:00] claims. So we really want to make sure that we’re not using the objections as a band aid also because it kind of makes your client look bad, right?
They’re going to lack credibility because they can’t really stand up on their own. Again, because you’re trying to protect them with this objection form. And, naturally, if it’s done enough times and enough depositions, then you gain a reputation, which will either have People reacting the same way, giving you the same thing in return, or may take you to the judge altogether.
Now, you may say to yourself, Elizabeth, now maybe this happens to me every once in a while, but it’s not something that I Regularly rely on and you may not even realize that you’re doing this because we are busy people. We have lots of cases. If you are a practicing plaintiff’s trial lawyer, you have a big caseload.
That’s just the nature of the work that we do. I’ve I was speaking with a lawyer this morning [00:06:00] and he, we’re risk takers. We front expenses, we, we take on cases. We got to have more than one or two. So we have a big caseload. We can get distracted. We have multiple things going that we’re getting ready for preparing and thus preparing clients can get shorter.
Sometimes it’s the morning of maybe it’s the day before, but usually we’re just not as organized as we’d like to be. And this may mean that we are skipping out on organizing our file, reviewing it, laying out the hardest areas a client may face in deposition. So these are those hard questions that challenge the core of the witness, which is where we jump in with that objection form.
Because the question may be fine, may not be fine, but either way, we’re sending up a red flag here and it’s very obvious. The defense counsel is going to see the red flag too. Remember ponchos? We used to use, if you’ve ever eaten at ponchos, they used to [00:07:00] raise the flag and they’d bring over sopapillas or whatever you needed.
You may not have ever had that experience and I’m sorry, it was a wonderful place, but that’s what I’m talking about. You’re raising that red flag up. Danger, everybody sees it. Defense counsel and the witness. So let me give a real specific example. When a client is faced with this kind of situation and in, in a car wreck case, I saw this many times where maybe we had a client who failed to go to all the recommended treatment or maybe they missed appointments and then they start to get these questions from the Defense counsel opposing counsel that dance around this insinuation that you must not have been hurt or Was it important to you to get better to take care of your health, right?
Because you’re skipping out You’re skipping out on these things and that really puts the client in a difficult situation, it’s like an emotional gut punch that they are ready for. And when they get that gut punch, it really clouds their minds and any [00:08:00] logic they could use to answer the question. And therefore they’re going to respond emotionally or defensively.
And generally. They’re not even going to answer the question because they feel attacked, they are therefore going to go on attack. This is where we jump in and start objecting those questions. But again, here we go. Here comes the opposing counsel. They’re gonna rephrase and go back at it again and give them enough chances.
They’re gonna get the berry in the bucket. Which means they’re going to get that clean question. They’re going to get that damaging response. And at the time of trial or in a motion for summary judgment, that judge is going to look at that question and say, Hey, that’s a clean question. That’s going to come in and it’s going to be damaging.
So we really want to make sure and look at, Hey, am I doing this subconsciously? Maybe I don’t even know, or am I, how could I do just a little bit better? preparation to avoid having that situation where the client goes [00:09:00] through it and we’re having to objection form and just basically use it as a band aid and think, Hey, I’ll fix it later, but some things just can’t be fixed later and it’s going to come in.
So what’s our alternative? Well, I like to think about it in a checklist, right? So when I’m going to sit down and get ready for for preparation of a client, I really want to be organized. And there are things that you’re just going to repeat and do again. And some of the things on our checklist, you can ask somebody else in your office to do a paralegal, a legal assistant.
You can even find a third party that will do some of these things for you. The important part is if you have somebody else do the work for you, you still got to put your eyes on it. You still got to review it. So. Let’s talk a little bit about our checklist here. Think about it in your mind, like a list of things, a little checkbox, right?
And so one of the check marks may be a list of case documents, right? That may be for you medical records. It may be the employment file. [00:10:00] And you really want to make sure as a subset that the list of case documents that the client has reviewed Or looked at. Because again, we want to make sure if this is something that came from them, we definitely want to highlight that.
Make sure that we look at all those documents the client has had their eyes on, brought to you, or a part of. That could be emails, documents, contracts, depends on the type of case. You always want to make sure you’re reviewing a timeline of events. And this is one of the things that I generally do when I get involved with a I create a timeline.
I create a timeline so that the client can look at it and, oh, hey, oh, yeah, I forgot about those things. We can fill in the timeline together. One can be done already. And there are maybe times where the client will take in a timeline to the deposition with them. And again, it’s one that we’ve looked at, we’ve crafted it.
There’s no secret sauce that’s. On our timeline, it’s just really a very basic link of events. And [00:11:00] generally, if you’ve done it, it’s going to help the defense anyhow because they haven’t done one, right? So that’s, you’re putting together, you’re creating a visual aid that’s helpful for everybody, but really mostly helpful for your client when they’re going to be deposed.
I also like to look at on our checklist summaries of other testimony in the case. Again, this also depends on when depositions are happening. Sometimes your client is first. Sometimes they are last. Just really depends on where things are. If you have other testimony, I like to look at those summaries. And I always like to review discovery responses.
Again, this is something in the case that involves your client. At times, the discovery responses may have been 30 days ago. Sometimes they’re 3 years ago. I always want to make sure we’re getting our eyes on there to look at it. I always like to look at the current pleadings. And then, if we’ve survived motion for summary judgment, I always like to look at the defense.
Motion for summary judgment, To see where they have placed the weakest points of our case. And that’s the whole point of working through this checklist is to spot the weak points, [00:12:00] but then understand and get eyes on that supporting evidence the opposing counsel has, right? What is fueling the weakness?
Because that is the thing. If it’s a document, if it’s a medical record, we got to get that thing out and in front of our clients in preparation. And we want to make sure that we’re creating the hard hitting questions that the client is going to get. And we’re going to drill them on it, challenge them before they get into that deposition room.
Now, there can be a hesitation to talking and giving your clients these hard hitting questions, these insinuating questions, because they really, if done right, like, they really can challenge, like, the core of what the client thinks about their case. That’s hard to do. Right. It’s hard to deliver as the person.
You’re their hero, right? You’re their warrior. They chose you to help them [00:13:00] can look like you’re also challenging, right, their case. And so we will talk about using hard hitting questions in a future episode, but just want to plant that seed where it is. I know that that can be hard to do, especially if you have clients, maybe they also lack confidence in their case, or maybe they are having a challenging time with something else in their lives.
Or. They’ve just had a challenging time with the case, filing a lawsuit. These are all things that are new, scary, and they just don’t like. So you coming in and challenging them again can be a problem. We’ll talk about that in a different episode. But Bringing it back, right, to our objection form as a Band Aid, we would just want to be going through our checklist and at the very least, you want to talk to the client.
You want to give them the ability to see that supporting evidence, to understand the twist, [00:14:00] understand that emotional gut punch, before they get in there. where they at least have the ability to neutralize that point, reduce that emotional defensive reaction they may have, and they’re going to be grateful that you did that.
But you know, the case overall is going to be grateful that you did that. So we just want to make sure that we are recognizing, hey, do I use this as a band aid? How can maybe I. Make this better. How can I avoid that? Give myself a little bit of peace, give the client some peace, right? And ultimately we just do not want to give, right, opposing counsel a second chance.
We don’t want to raise that red flag by using that objection form basically, again, to send any signal to your client or opposing counsel. All right. Well, I hope this was a helpful discussion for you. If you have questions or you’re curious more about how do I, how do I even know I do this, right? How can I look at this?
And again, [00:15:00] even if you’re just starting today and you’re thinking, all right, I’m going to create this checklist and I’m going to do these things. And if I can’t make the timeline, if I can’t make the summary, so I’m going to have somebody else in the office take some time to do that. So then I can look at it, prepare myself very quickly, take 30 minutes to read through all this stuff.
Know what it is before I sit down with the client to remind them, educate them, and teach them also about the weaknesses in their case. And I hope that this was helpful. If it was, please give us a five star review on your favorite podcast platform. Write a review so other lawyers can find this. If you wanna share this episode, that would be great.
The more the merrier, if you have a topic or suggestion, please don’t hesitate to email me. My email will be in the show notes. And until next time, thank you. I’ll see you [00:16:00] later.