Can My Lawyer Help Me Answer Deposition Questions?

If you want to know whether your lawyer can feed you answer after answer during your deposition, the answer is a resounding “no”. However, there are some not-so-subtle ways that many lawyers use to give their clients obvious hints as to how to answer. The most popular way lawyers feed their clients deposition answers is through a “speaking objection”. This practice, although widely used, is derided throughout the profession and is the source of many arguments between counsel at depositions. I do not encourage or condone this practice, as I feel it should be unnecessary if you’ve been properly prepared for your deposition. However, if your lawyer makes a speaking objection, pay attention! He’s trying to tell you something.

What Is A Speaking Objection?

A speaking objection is an objection which goes well beyond stating the grounds for the objection and actually hints to the deponent what the answer should be. For example, a proper objection would be: “Objection, foundation.” A speaking objection would be: “Objection, foundation. He couldn’t possibly know how fast the other car was traveling.” Can you guess what your answer to the question should be after hearing the speaking objection?

These types of objections are never made at trial, but are made during depositions. Why? There is no judge present at depositions. Also, unless the lawyer uses speaking objections continuously, opposing counsel won’t seek sanctions from the judge after the fact.

So, if your lawyer makes an objection at your deposition which goes beyond 3 or 4 words, he’s probably trying to feed you an answer (or a non-answer, as in the above example).

Why Speaking Objections Are Improper

Most objections have no place in a deposition. The “usual stipulation” understood by lawyers in a deposition is that the only objections which need to be made at that time are: (1) objections based on privilege, such as attorney-client privilege, and (2) objections to the form of the question. Objections to the form of the question usually occur when the question is confusing or tries to ask several questions at once (compound questions). All other objections do not need to be made during the deposition, and can be made later before a judge if the need arises. In fact, it is considered unprofessional to make unnecessary objections during a deposition, as there is no judge present to rule on it and the client will have to answer anyway.

Some lawyers still make unnecessary objections for the sole purpose of disrupting the other attorney. Smart attorneys ignore these objections, but others get drawn into pissing contests over them which disrupt the flow of the questioning, giving the objecting lawyer exactly what he wants. I’ve seen lawyers completely forget to get an answer to their question after the argument with the objecting lawyer is finished. These type of brief, frequent objections don’t give you any information as a plaintiff (other than the fact that your lawyer is kind of a dick). However, they may break the deposing lawyer’s train of thought and make him skip follow-up questions.

“Clarifying” the Defense Attorney’s Question

Another means by which your lawyer can try to feed you an answer is to try to “clarify” the defense attorney’s question. For example, the defense attorney could ask “On a scale of 1 to 10, what is your average level of pain from your back injury?” Your attorney might immediately jump in with “Do you mean with or without taking his pain medication?” These clarification questions are not necessarily wrong or impermissible, as some of the defense lawyer’s questions could be misleading or confusing. However, they still send the plaintiff a message: e.g., “Don’t forget to say that your pain is worse without pain medication.”

Another common question which begs a “clarifying” question is “What could you do before the accident that you can no longer do now?” The most common clarification question in response to this is “Do you mean things that he cannot do at all now, or things that he used to do without pain that cause him pain now?” Again, this is a fair issue for clarification, as merely listing the things you cannot do at all may give a false impression as to your current limitations.

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A common clarification question is “Are you asking my client for a legal opinion?” This is asked most often in response to questions like “What did the defendant do that was negligent?” The best way to respond to this cue is to start your answer with: “Well, you know I’m not a lawyer (or expert), but if you’re asking me from a lay person’s perspective what the defendant did wrong, I think . . .” This type of preface allows you to more easily supplement or change your answer at trial with the explanation that at your deposition, you didn’t know all the legal grounds for claiming that the defendant was negligent.”

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The bottom line is, if your lawyer interjects a “clarifying” question, regardless of whether the defense lawyer agrees to clarify his question, you should make the clarification part of your answer.

The “Answer If You Can” Prompt

If your attorney ever tells you “answer if you can” or “answer if you understand the question” (usually after an objection), it means he doesn’t like the question and is hoping you will say that you don’t understand it or need it re-phrased. This will leave the defense attorney with no choice but to re-phrase the question.

The “Asked and Answered” Prompt

If your lawyer objects that a question was “asked and answered”, that’s your cue to stick to your previous answer. If you can’t remember your previous answer, you may want to answer with “I believe I’ve already answered your question. If you’re looking for something else, could you re-phrase your question?” This may prompt a question that won’t cause you to contradict a previous answer. “Asked and answered” objections are frequently turned into speaking objections by simply adding “He already said that (insert what you previously said)” This lets you know exactly how to answer if the defense attorney still wants an answer after the objection is made.

Help During Deposition Breaks

Plaintiffs’ depositions are frequently several hours long. This means that you will have bathroom breaks and other breaks (maybe even a lunch break). During these breaks, you can ask your lawyer about prior answers you gave if you think something might need fixing or clarifying. It’s better to get this out of the way during the deposition, instead of trying to fix it after the deposition is concluded. You can also ask about questions you anticipate will be asked based on prior questioning. You can’t take a break while a question is pending in order to get the answer. Most of the time, breaks will only happen after a “line” of questioning is completed to prevent this type of coaching.

While there are several ways for your lawyer to help you during a deposition, some more proper than others, the best scenario is you not needing help due to proper deposition preparation beforehand.

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17 Responses to Can My Lawyer Help Me Answer Deposition Questions?

  1. Valarey says:

    What if you are a “witness” for a person and are deposed and the attorney spends 20 minutes on the testimony that you will provide for the person in the lawsuit and spends the rest of the day finding out information on you and your potential issues with the company?? The attorney for the person I am testifying for only objected 3 times and left me – abandoned to deal with the opposing attorney! Was that ethical?? How was that fair to me when I was witness for his client?? What’s my recourse?

    • fl_litig8r says:

      You have no recourse. The plaintiff’s attorney has no ethical obligation to “protect” non-client witnesses during their depositions.

      That being said, there’s probably little he could have done, anyway. The scope of discovery is far broader than the scope of admissibility. As long as the questions asked might lead to admissible evidence, they can be asked during a deposition. Questions relating to your potential biases, no matter how far fetched they may seem, are fair game. The plaintiff’s lawyer wouldn’t have any grounds to object to these questions, much less have the power to stop the defense lawyer from wasting your time by asking them.

      Keep in mind that the defense lawyer is paid by the hour. His time is never wasted, as long as he can bill for it. I’m sure the plaintiff’s lawyer, who isn’t paid by the hour, was not too happy having to sit through a long line of useless questions. If he could have stopped it, he probably would have.

      If you want to get back at someone, save your anger for the defense lawyer and stick it to him by testifying favorably for the plaintiff at trial, as you originally would have (he won’t have near as much leeway with his questioning at trial).

  2. Valarey says:

    Thank you very much for your feed back. That female defense attorney actually made me feel like I needed an attorney so when she called me back to come again for more questioning I had an attorney and let her know that I have an attorney and am now suing the company because of her. Originally, I was just going to stand for anyone who came out of that company with a retaliation claim that sought legal recourse because of the manager that she is defending. She literally beat me up without an attorney when I was only a witness for a former co-worker and now I am suing! Personally, I think she’s making too much money to convince former employees to seek legal recourse, but what do I know. I’m just a regular person!! 🙂

  3. Valarey says:

    Yeah – I forgot about that! There will probably be a Confidentiality Agreement too so I won’t be able to help others because of this action I’m taking also! I really don’t like her!! While my attorney was shaking the hands of the other side – she was staring me down………..literally!! The next time she calls me a Who** I’m just going to smile at her and take your advice not to show any anger and give her what she wants!!

    • fl_litig8r says:

      I wouldn’t worry about a confidentiality agreement. Even if a judge honored that agreement (unlikely), your prior depositions could still be used because you would “unavailable” as a witness at trial. Given that your depositions will be in cases against the same company that would be sued in subsequent lawsuits, they couldn’t argue that they didn’t have ample opportunity to cross-examine you.

      Now that I know that this is an employment case against your former employer, I wouldn’t be surprised to learn that this attorney took extra long in the first depo because she anticipated you possibly suing as well. Basically, she wanted some free discovery on your possible lawsuit while you were unrepresented.

  4. Valarey says:

    Oh and I forgot to say – I’m going to give her more “Yes” and “No” answers and I won’t elaborate much unless I feel I have to. I’ll make her go fishing! I’ll make her work just a little harder for her answers.

    I feel sorry for the women who sit across from her past, present and future because they believe something happened to them at an former employer and a man/manager could be involved and she literally crucifies them for STANDING because they believe something happened to them. It may be her JOB – but it seems really bad to behave that way! I think I’ll remember that she sees dollar signs when she looks at me and try not to take it so personal! One things for sure – I’ll be a different plantiff the next time I’m in front of her. 🙂

    • fl_litig8r says:

      It’s pretty rare for a defense attorney to have any real emotion about a case. They usually don’t have any kind of personal relationship with the client, especially a corporate client. If she was rude, it was probably just to get a rise out of you. Or maybe she was just a bitch. Either way, it’s much better for you to keep your cool. Your lawyer may want to videotape your deposition if this defense lawyer is assigned to your case. Should she step out of bounds again, it will come across much more clearly on videotape (written transcripts don’t capture snark very well). Some lawyers will behave better if you videotape the depo just to avoid having the tape played for a judge at a sanctions hearing.

  5. Valarey says:

    Thank you for the advice. They are video taping and recording what goes on! I’m glad to hear that what I testify to can be used for the future – because there are “others” and I want to help them. Personally, I don’t believe this will go to trial and so testimony won’t be a matter of public record, but I will find a way to help one of those females if and when the time comes and she needs me!

    Thank you again – I’ll let you know how MY depo for MY case goes when the time comes!! Cool, calm and collected!! 🙂

    • fl_litig8r says:

      Depos are usually filed in support of, an in opposition to, the defendant’s motion for summary judgment, which is very common in employment cases. Even if they never get filed, their existence will be discoverable by future plaintiffs, and their lawyers will able to get copies.

      I’m surprised this lawyer would misbehave on video, but I guess some people just can’t help themselves. If it’s any consolation, a jury is likely to hate her.

      Good luck with your case. Do let me know how it turns out.

  6. Valarey says:

    I forgot to ask you – I learned through the last depo that she has a Confidential type file in place. Comments that I made about her being the reason I got an attorney rather than face her in a another depo without one is missing and her comments about calling me the Scarlett Who** are missing and other comments. Will future plantiffs be able to have access to these comments through their attorney’s? I personally doubt this will go to trial. I think that’s a threat for the most part. I’ve learned that if it does that even his testimony is now discoverable by everyone including his wife and I just don’t see that happening! Let me know what you think about the confidential comment and is that only for attorney eyes are discoverable by plantiffs?

    Thank you in advance –

    • fl_litig8r says:

      I’m a little confused as to what’s going on. Are you saying the defense attorney has a confidential file? If so, who generated it — her, or your former employer? Files which are prepared in anticipation of litigation are considered “work product” and are not discoverable.

      Are you saying that you have seen this file and that it is missing things? How do you know what is missing?

  7. Valarey says:

    I appreciate your assistance. I better be careful. That defense attorney is a Baracuda with a law degree. 🙂 I don’t want her to discover any of these comments. Thank you again for your comments and your assistance. I’ll be in contact when it is all through!

  8. Susan says:

    I have a medical malpractice case that is filed. But when I look up the doctor’s information is states the there are no malpractice cases currently against him, is that legal? Future patients looking up the doctor they are referred to will not know not to go to him? Thank You, Susan

    • fl_litig8r says:

      From your internet provider, I assume you are in Oregon. The Oregon Medical Board’s website says this about malpractice information in licensee search results:

      The malpractice search results below show closed malpractice claims that were filed in court and resulted in a judicial finding/admission of liability, or a monetary judgment, or an award or settlement that involves payment to the claimant/plaintiff.

      They don’t report claims that haven’t been resolved against the doctor. This is supported by ORS 742.200. See subsection (5) of that statute:

      The board may not publicly post information about claims that did not result in a judicial finding or admission of liability or a money judgment, award or settlement that involves a payment to the claimant but shall make the information available to the public upon request.

      So, while they don’t post this information on the website, if someone were to specifically request information about a doctor with a pending malpractice claim, they will provide it.

  9. Susan says:

    Thank you for helping me. Even though I try to look legal information up so I understand what’s going on it is a dismal process with conflicting information. And my attorneys (and I understand) don’t want to take the time to explain the unfathomable complexity of the legal process. Sometimes it feels like I stepped into the SYFY channel. Susan

    • fl_litig8r says:

      Have pity on us lawyers who have to deal with this stuff every day. 😉

      So many times you come across a question that should have a quick and easy answer because it’s a situation which must have come up 1,000 times before, only to find out that the law is still conflicted on it.

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