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Object to Form Doesn't Fix Problems with Witnesses

"Object to form." Spare me.

Recently, I was deposing a defense expert. The expert was highly credentialed, a very impressive guy. He was also quite honest - and much of what he was saying was not particularly helpful to the defendant. As the deposition progressed, every time a question was asked which was likely to produce an unfavorable answer - and there were a lot of those instances - the defense lawyer would ritualistically spurt out "object to form."

What was he hoping to accomplish? He certainly has plenty of company. I see this all the time.

If asked, I suspect the defense lawyer would piously intone that he was "protecting the record." If honest, he would say that he was telling the witness to "watch out." The former is pointless and the latter is not only improper, but ineffectual.

In over 37 years of trial practice, I have never seen a deposition form objection become an issue of any sort at any trial.

Unlike the earlier days of my practice, what defense lawyers used to describe as "aggressive deposition defense" has become increasingly frowned upon by courts. That's a good thing. Even though I did it in the day, such conduct is nothing more than coaching a witness. It is wrong and unfair.

This episode illustrates an obvious truth of being a trial lawyer. Witness preparation is among the most important things we do. Once you get into a deposition or trial, your ability to control the witness is almost non-existent. If the witness is not ready and wandering all over the place, there is not much you can do.

Constantly spouting "object to form" doesn't fix problems with witnesses. Don't do it.


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