Understanding and Identifying Improper Speaking Objections

An improper speaking objection is an objection at a deposition or trial that is made in an argumentative or suggestive way. A speaking objection includes commentary beyond the specific legal grounds on which the objection is based. Speaking objections are sometimes used by attorneys who are attempting to coach a witness. A proper objection is limited to the specific legal grounds.

In June of 2014 the Northern District of California adopted “Guidelines for Professional Conduct” which address the impermissible use of speaking objections at deposition. Under section 9 Discovery of the Northern District’s Guidelines, specific examples are provided which are useful to help new lawyers begin to understand proper behavior when defending a witness at deposition. Here is a summary of the points made by the court:

• A lawyer should remember that most objections at a deposition are preserved and need be made only when the form of a question is defective or privileged information is sought.
• Once a question is asked, a lawyer should not coach the deponent or suggest answers, whether through objections or other means.
• A lawyer should not direct a deponent to refuse to answer a question unless the question seeks privileged information, is manifestly irrelevant, or is calculated to harass.
• A lawyer should refrain from self-serving speeches during depositions.

What the U.S. District Court has done with their Guidelines for Professional Conduct is very helpful for new lawyers. Many of the guidelines they have set forth are not found in the specific discovery and pleading rules plaintiff lawyers work with. The guidelines provide context for trial lawyers who are striving to conduct themselves with integrity and dignity. As we discuss in SignUp to Settlement, Personal Injury Bootcamp, settlement leverage does not come from being pompous, hostile and unprofessional; settlement leverage comes from doing a good job working up the facts of your case. Once the defendant sees you have built a compelling case, which you are not afraid to take to trial, they will be motivated to offer a reasonable sum to settle the case. This is especially true if you have conducted yourself with civility and professionalism during the workup and discovery of the case.

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