DEPOSITION FORM OBJECTIONS
Many times a lawyer in a deposition objects to the form of a question in order to preserve the objection for trial in case the deposition is read or shown to the jury. The phrase object to form or simply form is often used to raise any potential objection to form. Nevertheless, when faced with this form objection, a party opposing the objection has the right to request the basis of the form objection from the person raising the objection. Failure to do so, likely results in the objection being waived. “Florida Rule of Civil Procedure 1.330(d)(3)(B) requires the attorney to state the basis for the objection. In Weyant v. Rawlings, 389 So.2d 710, the attorney failed to state the basis of his objection in the deposition and the appellate court ruled that he waived his right to object to the form of the question later in the proceedings. The reason is that in deposition you the questioning attorney are entitled to know what is wrong with the form of your question so that you may have an opportunity to cure the objectionable question by restating correctly if you agree that it is problematic. If the opposing lawyer does not clarify what is wrong with the form, he or she has likely waived the objection by denying you the right to cure the objection. See Evans v. Perry, 161 So.2d 27 (Fla 2d DCA 1964). For example, assume you are in deposition and you ask an eye witness to a car accident the following question:” What direction were you looking at when you heard the bang of the crash and how bright was the sunlight?” your opponent objects to form. You don’t know what is wrong with the form of your question. You should then ask, ” what is wrong with the form of my question?” At that point the opposing attorney should say; ” You asked a compound question.” At that point, knowing that he is right, you may cure the problem, by restating the question and dividing it into two separate questions. For example: : what direction where you looking at when you heard the bang of the crash?” Answer: “west, towards the intersection.” How bright was the sunlight?” answer: ” Very bright, it was starting to drop toward the west and it affected my view.” If the opposing lawyer refuses to tell you what is wrong with the form or your question, he likely waived the objection by not allowing you to cure the problem.
A form objection is one that challenges the manner in which the question is posed as opposed to a question that asks about hearsay or privileges. Those objections are not waived by not raising them in deposition. The following are examples of form objections: leading question (not applicable to a hostile witness), argumentative questions, compound questions (i.e. asking about two different things in one question), ambiguous questions, assuming facts not yet established (some say “not in evidence” but trials are where ‘evidence’ is introduced), speculative, improperly characterizing the witness’ earlier testimony, leading questions ( suggesting the answer on direct exam) and cumulative or repetitive questions. See also Trial Techniques (4th Ed.) by Thomas Mauet, at page 426 (listing the various types of objections). If your opponent makes an improper form objection keep going and insist that the witness answer your question. If theobjection seems valid, and you know what you did wrong, then restate the question correctly. If you don’t know what is wrong with your question, then you should ask your opponent to tell you the basis of the form objection. If she tells you, then you fix it. If she does not tell you, then she likely waived the objection. I strongly recommend that when you make a form objection you should say the legal basis is for the objection. For example: ” objection, leading.”
Some federal cases decided this year reject the “object to the form of the question” utterance in depositions when counsel does not also explain the flaw in the question’s form (compound, leading, calls for speculation). U.S. District Judge Mark W. Bennett in Sioux City, Iowa, recently wrote that “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.” The Security National Bank of Sioux City, Iowa v. Abbott Labs, No. C 114017, (N.D. Iowa, July 28, 2014> In Henderson v B&B, the court found that a form objection “is meaningless standing alone and is contrary to what is contemplated by the Federal Rules of Civil Procedure.” Henderson v. B&B Precast & Pipe LLC, No. 4:13CV528 (M.D. Ga., Aug. 14, 2014). The court went also said that just objecting to form, without a legal basis, does not preserve the issue because “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.”
Bottom line, if you are objecting to a form question in a deposition should give a legal basis for the objection and if you are just objecting to by saying” objection, form,” then you should be ready to give the legal basis when asked to do so by your opposing counsel. Failure to do so will likely mean you have waived your objection.