Maritime Proctor Blog

If you’ve ever sat for a deposition, it can be an extremely stressful experience, especially to someone who’s never given sworn testimony before. You are unfamiliar with the process. There is a (sometimes angry) attorney trying to get information from you. The questions can be confusing. And then you hear the lawyer defending your deposition say:

“Objection, form.”

One of the attorneys then tells you that you can go ahead and answer the question, and it is just for the Court for later. But now, you’re probably thinking … “what was wrong with that question?

I've defended and taken too many depositions to keep count. Most of them occur under the Texas Rules of Civil Procedure, as a super-majority of the cases in which I am involved are filed in Texas state court.

Defending a deposition means that you, as an attorney, present the witness to offer testimony. Sometimes the witness is your client. Sometimes the witness is a corporate representative or an employee of your corporate client. Sometimes the witness is an expert your side retains to offer specialized testimony to assist the jury in a particular area. After I defend a deposition, one of the most common questions

In Texas, the Rules of Civil Procedure only allow attorneys to object on 3 grounds: form, non-responsive answer, or leading. The latter two are easy enough to decipher as a lay person.

When I object to form, it is because there is something about the question that doesn’t work for me, and I don’t think the question (or any answer to the question) would be admissible at trial.

When an attorney objects to form in Texas, here are the things with which the objecting attorney could have a problem with that particular question. I’ll list each one, and give an example of the type of question I think falls into each category below. “Objection, Form” in a Texas deposition means the question could be:

• Argumentative question
  • Why did you injure this man?
• Mis-stating the deponent or other witnesses
  • Mr. Jones said Mr. Smith looked angry and confused [but Mr. Jones actually said no such thing in his deposition]. Do you agree with Mr. Jones?
• Compound
  • It was windy and raining at the time of the incident, correct?
• The question is vague, ambiguous, or confusing
  • What did you tell her about it?
• Speculative
  • What do you think Mr. Jones thought Clause 10 meant when he signed this contract?
• Assumes facts not in evidence
  • Now we know that ABC Corporation was negligent when they hired Ms. Smith to work as a child care provider. Can we agree on that?
• Question is too general or vague
  • What did you say to her in that conversation about the business?
    • About what aspect of the business? Who is “her?”
• Asked and Answered
  • This is usually a question that is asked and the lawyer doesn’t get the answer they want, so they slightly rephrase it to try to get the desired testimony.
• Harassing and oppressive
  • When did you stop beating your wife?
• Incomplete hypothetical
  • So if Ms. Jones attended this safety training class, this accident wouldn’t have happened, right?
    • There may be a host of other factors that went into the accident beyond safety training. Weather, lighting, the staffing of the crew, drug use, etc.

As a witness, you will only hear the basis for an objection if the lawyer asking the question asks the objecting attorney to “state your basis” or “state your grounds” for the objection. The objecting attorney is required under the Texas Rules of Civil Procedure to provide a short response that doesn’t coach the witness but explains the objection on the record.

Hopefully, this helps potential witnesses who give depositions in Texas to understand the different things wrong with questions asked of them. If the witness takes a second to process the question before an answer is given, it gives the attorneys in the room time to object to form, which could give the witness insight that there is something wrong with the question.

In my opinion, any witness, in any jurisdiction, should not answer a question they don’t understand. The easiest way to work around this in the deposition is if you don’t understand a question, tell the lawyer who asked the question that you don’t understand and would appreciate if they could re-phrase the question. If there’s a technical word in the question that you don’t comprehend, tell the lawyer you need to know what they mean by that word.

The goal of any deposition is to get truthful, complete, and accurate testimony. Understanding the objections that will be made, as well as what those objections actually mean, can help witnesses to achieve these goals.

Hopefully, any potential witnesses find this blog post helpful in this regard, understanding and appreciating the legal disclaimer associated with this blog.