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.
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.”
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.