What does it mean when your employment lawyer objects to a deposition question?

Your deposition testimony will be critical to the success of your employment lawsuit. Because of the significance of this event, your lawyer will attend the deposition with you to protect your legal rights. From time to time during the deposition, your employment lawyer may object to a question. Listen carefully to the objection. Usually, the objection is made simply for the record (that is, for a judge to rule on later). Sometimes, though, the objection can warn you about potential problems with the question. Below is a list of common deposition objections your employment attorney might make and a description of what those objections mean for your testimony.

(1) Objection: “Vague and uncertain” or Objection: “Vague and ambiguous”

When your employment attorney makes these objections, you should carefully consider whether you truly understand the question before you answer it.

(2) Objection: “Lacks foundation” or Objection: “Assumes facts not in evidence”

These objections should signal you to consider whether the question states as a “fact” something that did not occur. Take for example, the following questions:

  • “Why didn’t you complain?”
  • “When did you resign?”
  • “Why didn’t you look for other employment?”

These questions assume that you did not complain, did resign, and did not look for other employment. If these assumptions are accurate, the questions are fine. If, however, the assumptions are inaccurate, then these questions are trick questions designed to get you to concede something you otherwise would not if the question were asked forthrightly.

(3) Objection: “Compound”

This objection means that the question has two parts, each of which should be considered and answered independently.

(4) Objection: “Asked and answered”

If the defense attorney is unhappy with your answer to a particular question, he may attempt to ask the question over and over again (sometimes using the exact same words as the original question and sometimes slightly modifying the question) until he receives the answer he wants. By engaging in this conduct, defense counsel hopes to trick you into thinking that a different question is being asked. When your attorney objects “Asked and answered,” this should warn you that you have already answered this question. You can then respond, “I have already answered that question” or “As I previously testified . . .”

(5) Objection: “Document speaks for itself”

Often, defense counsel will try to get you to characterize a document in a certain manner. By making the “document speaks for itself” objection, your attorney is alerting you to look at the document and quote from it, rather than characterizing it or restating it.

(6) Objection: “Mischaracterizes the prior testimony” or Objection: “Misstates the witness’ testimony”

Another common defense counsel ploy is to ask a question that appears to summarize your testimony, but that actually alters (subtly or, sometimes, not so subtly) the testimony to favor the defendant. For example:

Q. Did anyone at [name of defendant-employer] ever engage in any conduct of a sexual nature which offended you?
A. Yes. [Name of harasser] always stared at me in a sexual way, leering at my breasts and butt. [Name of harasser] told sexual jokes.
Q. Did [Name of harasser] engage in any other conduct that offended you?
A. Not that I can recall at this time.
Q. On how many occasions did [name of harasser] stare at you?
A. All the time.
Q. Can you estimate how many times?
A. No, it was all the time.
Q. Can you remember any of the jokes that [name of harasser] told?
A. No. I tried not to listen. I just remember that they had to do with sex.
Q. How many times did [name of harasser] tell these jokes?
A. I don’t remember. It was a lot.
Q. Is it fair to say that your complaint of sexual harassment is based on: (1) [name of harasser] looking at you in a manner you considered sexual on an unknown number of occasions; and (2) [name of harasser] telling jokes on an unknown number of occasions that you found to be sexual?
A. Yes.
Q. Any other conduct on which you are basing your complaint of sexual harassment?
A. No.

In this situation, the plaintiff has agreed to a summary of her sexual harassment claims that significantly minimizes their seriousness. A better response would have been something like the following:

Q. Is it fair to say that your complaint of sexual harassment is based on: (1) [name of harasser] looking at you in a manner you considered sexual on an unknown number of occasions; and (2) [name of harasser] telling jokes on an unknown number of occasions that you found to be sexual?
A. Not really. I said that [name of harasser] stared at me in a sexual way, leering at my breasts and butt. He didn’t just look at me in a manner I considered to be sexual. He also didn’t just tell jokes that I found to be sexual. He told sexually explicit jokes, and I found them to be very demeaning to women.

Whenever you hear your attorney object that a question “mischaracterizes the prior testimony” or “misstates the witness’ testimony,” you should carefully evaluate the question to ensure that it accurately restates your testimony.

(7) Objection: “Calls for a legal conclusion”

This objection is made to preserve the record (i.e., for the judge to rule on later) and to warn you that you may not fully understand the question. For example, defense counsel may ask a question that requires you to know the legal difference between an “employee” and an “independent contractor.” When you hear this objection, your best response is to say something like the following: “I’m not an attorney, and I don’t really understand your question” or “I’m not an attorney and I don’t know whether I fully understand your question, but I’ll try to answer it as best I can.”

(8) Objection: “Unintelligible”

This objection means the defense attorney is asking a question that does not make sense. Do not answer the question until the defense attorney rephrases it.

(9) Objection: “Complex” or Objection: “Confusing”

These objections are generally used when the question is so long that it is difficult to understand. Again, wait for the question to be rephrased.

(10) Objection: “Unfair characterization”

This objection means that the defense attorney is asking a question that unfairly characterizes something to which you earlier testified. This objection often is used interchangeably with the “misstates prior testimony” objection. When your employment counsel makes this objection, you should preface your answer with a disclaimer, such as: “That’s not exactly what I said, but. . .”