Courtroom scene by Honore Daumier, lithograph, 1845. (Fine Art Images/SuperStock/GettyImages.)
I thought they were well framed, but every question drew an objection. “How are you employed?” “Objection! Assumes facts.” “Are you employed?” “Objection! Vague.” “Do you have a job?” “Objection! Misleading, confusing, vague and ambiguous.” A bigger man would have let it go, but “Dick,” I asked opposing counsel, “when your parents named you, how did they know?”
Lawyers will be lawyers; we have all played the game. It’s hard to stay awake at a deposition if you don’t lob in an objection now and then. So I’ve done it; I’ve had it done to me. I’ve rejoined with colloquy; I’ve been colloquyed right back in my face. It’s just part of litigation.
Not so fast. On July 28, U.S. District Judge Mark Bennett in Security National Bank of Sioux City v. Abbott Laboratories imposed sanctions against a lawyer who made repeated deposition objections. Significantly, the judge in the Iowa case imposed sanctions sua sponte — not only did opposing counsel not complain, but he declined to take a position when the court raised the issue on his own.
Bennett does not have a hair trigger. In 20 years, he has imposed sanctions on a lawyer less than five times. It was not personal. Bennett went out of his way to laud the trial skills of the lawyer he sanctioned; he described the sanctioned lawyer’s partner who argued against sanctions as “one of the best trial lawyers I have ever encountered.” Clearly, he was stirred to unusual action. It is a must-read opinion.
The ink is hardly dry. The sanctioned lawyer’s firm has announced its intention to appeal. After all, in our system, all persons are presumed to know the law — except of course trial judges, for whom our system has provided courts of appeal. Bennett’s decision may or may not stand.
But for now it does. Bennett was asked to rule on objections in deposition testimony that would be used at trial, and he did not like what he saw: “Excessive use of ‘form’ objections”; “numerous attempts to coach”; and “ubiquitous interruptions and attempts to clarify.” He counted 115 objections to “form” and a total of 473 instances in two depositions where counsel inserted herself — in one transcript, counsel’s name appeared on average three times per page.
Objections were often quibbles: “Would it be fair to say that in your career, work with human milk fortifier has been a significant part of your job?” “Object to the form of the question. ‘Significant,’ it’s vague and ambiguous.” Often, objections were “absurdly hyper-technical: After the witness had testified that a dryer unit was enclosed and one cannot get into it, the questioner asked “Can I get on the outside of the dryer?” — drawing “Everything is, I mean, outside of the dryer is a huge expanse of space; anything that’s not inside the dyer is outside the dryer, so I object.” [Groucho Marx observed that "outside of a dog, a book is man's best friend; inside of a dog, it's too dark to read."]
Bennett held that it was improper to object to form without specifying what was actually wrong with the form. You cannot get away with “Objection. Form.” The objection must be “Objection. Form. No foundation.” Or “compound” or “leading” or “assumes facts” or whatever.
But Bennett did not base his sanction on form objections, because he recognized that other courts have permitted, if not required, that objections be limited to “form.” See, for example, Druck Corp. v. Macro Fund, a 2005 decision from the Southern District of New York. It held, “any ‘objection as to form’ must say only those four words, unless the questioner asks the objector to state a reason”.
So Bennett gave a pass in recognition that other courts have acted differently, but there is only one get-out-of-jail free card. “Unspecified ‘form’ objections are improper and will invite sanctions if lawyers choose to use them in the future,” he wrote.
And there’s no pass for coaching. Bennett found repeated examples, such as when counsel injected “Object to the form of the question. It’s a hypothetical; lacks facts.” The objection led the witness to respond “Yeah, those are hypotheticals.” Or, after a question was posed about why Abbott uses pasteurization, counsel interposed “If you know, and you’re not a production person, so don’t feel like you have to guess.” That objection drew the witness to “I don’t know.”
Numbers matter. Bennett noted that he would not have even considered sanctions sua sponte had there been only a handful of improper objections. “Depositions can be stressful and contentious, and lawyers are bound to make the occasional improper objection,” he wrote. A handful is a handful; 473 is a sanctionful. Bennett’s imposed sanction called for the lawyer or one of her partners to prepare an instructional video that describes the holding and rationale of his opinion and provides specific steps to comply in future depositions.
Whether or not the video ever makes prime time, there are some lessons here.
First, feel free to have a little fun, but not too much fun. You can probably get away with a few bad objections. Probably not several hundred.
Second, don’t just object to form. Add the reason. If you can’t think of a reason — aha! — then don’t object. (This is the legal analog of Will Rogers’ investment advice: “Buy a stock, wait for it to rise in value, then sell it; if it doesn’t rise, don’t buy it.”)
Third, coach your witness during preparation, not during the deposition. If your witness screws up, fix it later rather than interject.
Fourth, say a little prayer, there but for the grace of God go we. As I reflect upon how I have in the past comported myself at depositions, it could well have been me making a video. It would certainly have been my good friend, Dick.