CBA Record March-April 2024

THE YOUNG LAWYERS SECTION

The Foundations of Form: Objection Techniques for Illinois Attorneys in State Court Depositions By Andre Hunter, Jr.

I t’s not what you said, but how you said it. Attorneys interpose form objections during depositions to challenge the way a question is framed—not necessarily the substance of the question itself. In a dis covery deposition pursuant to the Illinois Supreme Court Rules, form objections tackle concerns related to the clarity, fair ness, accuracy, and professionalism of how a question is presented. Not only is it in a defending attorney’s interest to object, but it is also in the depos ing attorney’s interest to listen to form objections, as doing so provides both sides with an opportunity to cure the objection or clarify the transcript in real time. Before your first or next deposition, be sure to incorporate these techniques into your litigation toolkit. Keep in mind, though, that Illinois courts have discre tion to impose sanctions for abuse of dis covery rules. See Ill. S. Ct. R. 219. “One Fact Per Question” Before any valid objection, there is a bad question. Avoid bad questions by being direct, tailored, and posing only “one fact per question.” This approach forces you to break down questions, ultimately reducing objections and developing clearer testimony. Take, for instance, the following exchange: Q: “You were on 35th Street, right?” A: “Yes, after the game.” Q: “What did you see first?” A: “Three Cubs fans leaving the stadium.” Q: “Where were they going?” A: “After the Sox won, they were sprinting to the Red Line.” Timeliness To ensure your objection is timely, object after counsel’s question but before the witness’s answer. Especially in Zoom or telephone depositions, you may ask coun sel on record to stipulate that an objection after an answer is still timely.

Keep It Short and Sweet Illinois prohibits “speaking objections,” which often contain unnecessary infor mation that may not be essential for the judge’s decision on sustaining or overruling an objection. See Ill. S. Ct. R. 206(c)(3). Whether intentional or an honest mistake, in practice, attorneys may issue speaking objections that neither clari fies a question nor protects the record, but instead attempts to coach a witness on how to testify. This is exemplified by responses such as “I don’t want to guess” after a speculation objection, or “I don’t recall” following an objection directing the deponent to “answer only if you know.” The practice of excessive objections to form has triggered debates among Illinois practitioners, as it may also cue a witness toward a specific answer or disrupt the natural flow of questioning. Some Illinois judges even explicitly address form objec tions in their standing orders. Consider the following example: Counsel A: “What were the dangerous conditions you found by Mr. Smith’s entrance?” Witness: “Nothing, the stairs looked stable.” Counsel B: “Objection. Counsel, you’re framing the question with an assump

tion. Ask him about the conditions he observed without implying a specific answer.” To avoid speaking objections, it is best to succinctly state your form objection along with the rationale—for example, “Objection: form, assumes facts not in evidence.” Concisely articulating the basis for the form objection does not coach the witness and allows opposing counsel an opportunity to rectify any deficiencies in the pending question, which may prove consequential in a subsequent motion or trial. As the questioning attorney, you may briefly ask counsel to clarify their objec tion to address a defect (e.g., “Assumes facts, as the witness did not previously mention purchasing warranty cover age”). Nevertheless, it is also advisable for lawyers to avoid extensive explanations before a witness answers and to carefully assess whether to give opposing counsel an opportunity to bolster their objection. Further, if you request that counsel clarify their objection, be prepared for counsel or the witness to repeatedly seek clarifica tions to your questions moving forward. Key Form Objections In discovery depositions, you must object

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