Episode 45 - Objectionable Objections: When Defending Lawyers Claim THEY Don't Understand the Question

Episode #45

There are probably few things more irritating, when examining a deponent, than having the defending lawyers repeatedly interrupt and claim they don't understand your questions. It's bad enough when witnesses feign ignorance of the obvious. But the opposing lawyers, too? In this episode, Jim Garrity tackles the subject of lawyers who engage in obstruction-by-colloquy, and how to deal with it. Helpful case citations in the show notes, below. Thanks for listening.


SHOW NOTES


Musto, et al. v. Transport Workers Union of America, AFL – CIO, et al., 2009 WL 116960 (E. D. New York January 16, 2009) (attorney may not “interpret” questions for deponent, or engage in lengthy speaking objections and colloquy; “the witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient record”)


Security National Bank of Sioux City Iowa v. Abbott Laboratories, 299 F.R.D. 595 (N. D. Iowa July 28, 2014 (“Lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question. The witness—not the lawyer—gets to decide whether he or she understands a particular question”; “[w]hile it is impossible to know for certain what a witness would have said absent Counsel’s objections, I find it inconceivable that the witnesses deposed in this case would so regularly request clarification were they not tipped-off by Counsel’s objections”)


Chesbrough et al. v. Life Care Centers of America, Inc., 31 Mass.L.Rptr. 629 (Sup. Ct. Mass Feb. 14, 2014) (“If the deponent does not understand the question, or the meaning of a word or phrase, or even if the deponent has a question about a document, he or she should ask the questioning attorney”)


Applied Telematics, Inc. v. Sprint Corporation, 1995 WL 79237, Civ. A. No. 94–CV–4603 (E.D. Penn. Feb. 22, 1995) (“In addition, plaintiff’s attorney may not object to a question that the attorney does not understand. As stated in Hall, “a lawyer’s purported lack of understanding is not a proper reason to interrupt a deposition.” Nor may the lawyer state for the record what his understanding of the question is. Id. These types of responses by an attorney are irrelevant and suggestive of a particularly desired answer. Id. If the witness does not understand the question, or needs some language further defined or some documents further explained, the witness can ask the deposing lawyer to clarify or further explain the question”)


Peronis v. United States, 2017 WL 696132, Case No. 2:16-cv-01389-NBF (W.D. Penn. Feb. 17, 2017) â€œ ‘A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness.’ ” Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 59 (E.D. Pa. 1993) (quoting Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993)). “ ‘There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers")


Community Association Underwriters of America, Inc. v. Queensboro Flooring Corp., 2014 WL 3055358, Civil Action No. 3:10–CV–1559. (M. D. Penn. July 3, 2014) (Under the federal rules, an attorney is not permitted to object to form and demand clarification of a question the attorney claims not to understand; the witness should be permitted to answer the question posed, or to ask for clarification herself if she does not understand the question. See Birdine v. City of Coatesville, 225 F.R.D. 157, 159 (E.D.Pa.2004); Hall, 150 F.R.D. at 530 n. 10. Moreover, “lawyers are strictly prohibited from making any comments ...which might suggest or limit a witness’s answer to an unobjectionable question.” Hall, 150 F.R.D. at 531; see also Deville v. Givaudan Fragrances Corp., 419 Fed. App’x 201, 209 (3d Cir.2011) (affirming Rule 30(d)(2) sanctions imposed when attorney “testified on behalf of her witness by way of suggestive speaking objections”); Birdine, 225 F.R.D. at 159 (objection that deponent “already testified that within five feet was the closest he got” was improperly suggestive). Likewise, “counsel are not permitted to state on the record their interpretations of questions, since those interpretations are irrelevant and often suggestive of a particularly desired answer")