Deposition Form Objections: A Guide

In depositions, attorneys frequently object to the form of a question to preserve the objection for trial, should the deposition be read or shown to the jury. The phrase "object to form" or simply "form" is commonly used to raise any potential objection to the form of a question. When faced with a form objection, the party opposing the objection has the right to request the basis of the form objection from the objecting party. Failure to do so may result in the waiver of the objection.

Florida Rule of Civil Procedure 1.330(d)(3)(B) requires the attorney to state the basis for the objection. In Weyant v. Rawlings, 389 So.2d 710, the appellate court ruled that an attorney waived his right to object to the form of a question later in the proceedings because he failed to state the basis of his objection during the deposition. This rule exists to ensure that the questioning attorney understands the issue with the form of the question, providing an opportunity to restate it correctly if it is indeed problematic. If the opposing attorney does not clarify what is wrong with the form, they have likely waived the objection by denying the questioning attorney the chance to correct it. For reference, see Evans v. Perry, 161 So.2d 27 (Fla 2d DCA 1964).

Example: Handling a Form Objection

Consider you are in a deposition and ask an eyewitness to a car accident: “What direction were you looking when you heard the bang of the crash, and how bright was the sunlight?” If your opponent objects to the form, you might not immediately understand the issue. You should ask, “What is wrong with the form of my question?” The opposing attorney should then specify, for example, “You asked a compound question.” Recognizing the validity of this objection, you can cure the problem by restating the question as two separate ones:

“What direction were you looking when you heard the bang of the crash?”

Answer: “West, towards the intersection.”

“How bright was the sunlight?”

Answer: “Very bright; it was starting to drop towards the west and affected my view.”

If the opposing attorney refuses to clarify the objection, they likely waive it by not allowing you to correct the issue.

Types of Form Objections

Form objections challenge the manner in which a question is posed, as opposed to objections about hearsay or privileges, which are not waived if not raised during a deposition. Examples of form objections include:

Leading questions (except for hostile witnesses)

Argumentative questions

Compound questions (asking about two different things in one question)

Ambiguous questions

Assuming facts not yet established

Speculative questions

Improperly characterizing the witness’s earlier testimony

Cumulative or repetitive questions

For further reference, see Trial Techniques (4th Ed.) by Thomas Mauet, page 426, which lists various types of objections.

If you encounter an improper form objection, continue with your questioning and insist that the witness answer. If the objection seems valid and you understand the issue, restate the question correctly. If you do not understand the issue, ask the opposing attorney to explain the basis of the form objection. If they provide a reason, you can fix it. If not, they likely waive the objection.

Federal Cases on Form Objections

Recent federal cases have criticized the use of generic “object to form” statements without specifying the flaw in the question’s form (e.g., compound, leading, calls for speculation). U.S. District Judge Mark W. Bennett in Sioux City, Iowa wrote that “objecting to ‘form’ is like objecting to ‘improper’ – it merely suggests that the objector takes issue with the question. It is not a valid ground for objection nor does it preserve any objection.” See The Security National Bank of Sioux City, Iowa v. Abbott Labs, No. C 114017, (N.D. Iowa, July 28, 2014). Similarly, in Henderson v. B&B Precast & Pipe LLC, No. 4:13CV528 (M.D. Ga., Aug. 14, 2014), the court stated that a form objection is meaningless on its own and contrary to the Federal Rules of Civil Procedure. It further noted that failing to state the objection concisely during the deposition, thus providing the questioner an opportunity to correct the form, waives the objection.

Conclusion

When objecting to the form of a question in a deposition, you must provide a legal basis for the objection. Simply stating “objection, form” is insufficient. If asked, you should be prepared to explain the specific issue with the question’s form. Failure to do so will likely result in waiving your objection.

Preparing and Conducting Voir Dire

This article provides a comprehensive overview of the purpose, practice, and procedures associated with jury voir dire. Voir dire is the critical process of questioning potential jurors during jury selection as outlined in Florida Rule of Civil Procedure 1.431(b).

The Purpose of Voir Dire

Voir dire aims to assemble an impartial jury by identifying and excluding jurors who may be biased against your client or the case. This process not only seeks to uncover any prejudices but also helps to educate potential jurors about the case’s issues and the respective strengths and weaknesses of your client’s position. During voir dire, attorneys can challenge jurors for cause if it becomes evident that a juror holds preconceived biases that would prevent them from delivering a fair and impartial verdict (Fla. R. Civ. P. 1.431(c)). In addition to challenges for cause, attorneys are entitled to a limited number of peremptory challenges to exclude jurors who they believe may not render a fair verdict (Fla. R. Civ. P. 1.431(d)).

Procedure for Voir Dire

Prospective jurors may be required to complete a jury questionnaire approved by the Supreme Court (Fla. R. Civ. P. 1.431(a); Form 1.984). The court may instruct the designated authority to provide this questionnaire to potential jurors to screen for disqualifications as per statutory requirements (Fla. Stat. § 40.013). The clerk is responsible for making the completed questionnaires available during voir dire for review by the parties and the court (Fla. R. Civ. P. 1.431(a)(2)).

Jurors cannot be sworn in until they have been accepted by both parties or until all challenges have been resolved (Fla. R. Civ. P. 1.341(f)). In a civil case, the jury must consist of at least six jurors (Fla. Stat. § 69.071), though cases involving eminent domain require twelve jurors (Fla. Stat. § 73.071(1)). Additionally, the court may appoint one or two alternate jurors to replace any jurors who become incapacitated before deliberations (Fla. R. Civ. P. 1.431(g)). The verdict must be unanimous, and parties have the right to conduct a reasonable examination of each juror during voir dire (Fla. R. Civ. P. 1.431(b)). The court sets the order of questioning and may pose questions itself but must respect the parties’ right to conduct voir dire (Fla. R. Civ. P. 1.431(b)).

Conducting Voir Dire: Preparation and Practice

Effective voir dire requires meticulous preparation and strategic execution. Begin your planning at the onset of the case, and develop your voir dire questions no later than five days before jury selection. Familiarize yourself with Fla. R. Civ. P. 1.431 to understand the rules governing voir dire. Review your case facts, proof outlines, and any relevant information from discovery, mock trials, focus groups, or jury consultants.

Draft open-ended questions that encourage prospective jurors to express their thoughts and feelings about the case. Avoid leading questions that do not reveal biases, such as asking, “Will you agree to be fair and impartial?” Instead, frame questions to explore jurors’ attitudes, like “What is your perspective on personal injury lawsuits?” Develop a chart with jurors’ last names to keep track of their responses and reactions during questioning.

During voir dire, speak clearly and avoid complex legal jargon. Introduce the case theme and summarize your intentions without being confrontational. Establish rapport with jurors by being approachable and making eye contact. Consider taking on an educational role to explain the judicial process without seeming preachy. Address jurors by last name, and avoid interrupting them while they speak.

Your voir dire should cover several key areas:

Introduction of Your Client: Briefly introduce who your client is.

Case Overview: Explain the nature of the case.

Witnesses: Mention the names of key witnesses.

Case Issues: Outline the main issues in the case.

Terms and Concepts: Explain any scientific or medical terms that will be used.

Craft questions that are concise and designed to uncover potential biases while integrating your case’s theme. Plan to address the jury as a group and follow up on individual responses as needed. Finalize your questions and rehearse with colleagues to refine your approach.

Peremptory Challenges and Challenges for Cause

Be prepared to exercise peremptory challenges against jurors who seem overtly hostile. A peremptory challenge does not require a justification but must not be used to discriminate against protected minorities (Shannon v. State, 770 So. 2d 714, 716 (Fla. 4th DCA 2000)). Familiarize yourself with case law related to peremptory challenges, especially regarding race-based challenges (Dorsey v. State, 868 So. 2d 1192, 1196 (Fla. 2003)).

Excuse jurors for cause when they demonstrate biases or prejudices that would hinder their impartiality (Fla. R. Civ. P. 1.431(c)). Common reasons include beliefs about the prevalence of lawsuits, excessive verdicts, or biases against certain parties or witnesses. Your credibility with the jury is critical; address potential weaknesses in your case honestly and preemptively.

Conclusion

Preparation and strategic execution of voir dire are crucial for selecting an unbiased jury. By carefully preparing your questions, establishing rapport with potential jurors, and effectively managing challenges, you can enhance your chances of securing a fair and impartial jury for your case.

Navigating the Challenges of a Surprise Witness During Trial: A Guide for Attorneys

It is Friday afternoon in the middle of your trial and opposing counsel suddenly informs you that they have just “discovered” a new witness they intend to call to testify against you. This is the first time you’ve heard of this witness, despite your diligent efforts to request the names of all witnesses through interrogatories and depositions. After you manage to calm your nerves, you realize that your best course of action is to object. You rise, clear your throat, and declare, “Objection.” Your hope is that the trial court will agree with you and grant your motion to strike the witness. But what if the court wants to hear arguments on the matter? What are the legal standards that govern this situation?

To address this, it is helpful to review the standard trial order practices.Typically, a trial order requires that “Parties shall furnish opposing counsel with a written list containing the names and addresses of all witnesses (impeachment, rebuttal, or otherwise) intended to be called at trial, and only those witnesses listed shall be permitted to testify.” Most judges adhere strictly to this requirement and will not permit any undisclosed witness to testify.

However, there are exceptions. A trial judge may allow a previously undisclosed witness to testify if certain conditions are met. According to Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981), a trial court has the discretion to permit a surprise witness to testify if the presenting party demonstrates that:

  1. Diligent Efforts Were Made: The party had made diligent efforts to locate the witness before trial but was unsuccessful due to the witness’s unavailability.
  2. No Prejudice to the Opposing Party: The opposing party is not prejudiced by the late disclosure.
  3. No Disruption to the Trial: The introduction of the witness will not disrupt the orderly and efficient progress of the trial.

In Binger, the Florida Supreme Court established that a trial court may exclude the testimony of a witness whose name was not disclosed in accordance with a pre-trial order if:

  • The opposing party is prejudiced by the surprise.
  • The opposing party lacked independent knowledge of the undisclosed witness.
  • The witness’s testimony would disrupt the trial’s efficiency and order.
  • The presenting party did not exercise due diligence in finding the witness before trial.

Subsequent cases like Hilton v. Hamer, 501 So.2d 1365 (Fla. 4th DCA 1987) and William Sayad v. James Alley, 508 So.2d 485 (Fla. 3d DCA 1987) have reinforced this standard, upholding the trial court’s decisions to exclude undisclosed witnesses.

It is important to note that the Florida Supreme Court in Binger emphasized that all witnesses, including those for impeachment or rebuttal, must be disclosed before trial if the pre-trial order requires it. However, the trial court retains broad discretion to determine whether to allow an undisclosed witness to testify, provided that it does not constitute an abuse of discretion. The key factor in such decisions is whether the opposing party can demonstrate that they will suffer prejudice from the surprise witness.

If you find yourself faced with an opposing counsel’s surprise tactic, apply the following strategies:

  1. Establish Prejudice: Demonstrate to the court how the late disclosure of the witness affects your ability to prepare and affects the fairness of the trial.
  2. Show Inability to Cure Prejudice: Argue that the surprise cannot be remedied and will disrupt the trial's efficiency.
  3. Seek a Motion in Limine: If successful in excluding the witness, also move in limine to prevent any mention or evidence related to the undisclosed witness to avoid tainting the jury’s perception.

By understanding these principles and applying them to your case, you can effectively argue against the introduction of surprise witnesses and safeguard the integrity of your trial.