CBA Record March-April 2024

THE YOUNG LAWYERS SECTION

to the form of a question; otherwise, your objection is waived. See Ill. Sup. Ct. R. 211. The fundamental goal of a deposition is information gathering; exercise prudent judgment when stating form objections to exclude evidence that is genuinely improper and unfavorable. Keep these 10 common form objections in your arsenal to ensure they are not waived. 1. Leading. A leading question guides the witness by proposing a specific answer. Although eliminating coaching language may resolve the objection, asking leading questions, including to your own wit ness, is generally permitted in discovery depositions. See Ill. Sup. Ct. R. 206(c) (1)–(2); Ill. R. Evid. 611(c) (evidence depositions generally disallow leading on direct examination). A leading question, for example, would be: “The light was red, correct?” In contrast, a non-leading or open-ended question can be: “What color was the light?” 2. Compound. A compound ques tion contains multiple questions or facts in one question. Rectify this by break ing down the compound question into smaller components. Consider this com pound question example: Q: “Did you witness two masked individuals enter the restaurant, and were you able to identify them during Q: “‘No’ as to what part?” Instead, try the following: Q: Did you witness two masked indi viduals enter the restaurant?” A: “Yes.” A: “Were you able to identify them during the incident?” Q: “No, but I recall their clothing.” 3. Foundation. A foundation objec tion generally challenges a question on the grounds that the witness has not yet testified to key facts that establish that the witness is familiar with and able to answer the substance of the question. Foundation is typically cured by introducing addi tional background information. For instance, “How much did the Sox the incident?” A: “Well... no.”

beat the Cubs by yesterday?” is a poten tially objectionable question because it may not have been established that the witness has knowledge of the score. Con firming that the witness went to the game or watched highlights on ESPN could lay the foundation for why the witness would know the final score. “Assumes facts” objections are akin to foundation objections, with a key distinc tion: the former disputes the establish ment of a presumed fact, while the latter challenges the adequacy of background information supporting the question. 4. Misstates/Mischaracterizes Prior Testimony. These objections encompass challenges to questions that misrepresent or misstate previously established facts or events. To cure this, omit or correct the characterization. For example, if a wit ness has previously mentioned receiving a fraudulent payment, it would be a mis characterization for the attorney to later ask: “Earlier, you mentioned receiving a fraudulent kickback?” 5. Legal Conclusion. These objection able questions seek a response that asks the witness to opine on matters of law that are for the court to decide. An objec tionable question in this respect would be, “Was the driver of Vehicle A negli gent?” Cure this by questioning within the witness’s actual knowledge or exper tise. For instance, “Did you observe Vehi cle A swerve across the centerline before the accident?” 6. Argumentative. These questions express opinions or assume positions instead of eliciting facts from the witness. Rectify this by eliminating any commen tary. Consider this argumentative question: “Don’t you think your version of the story is a bit questionable?” 7. Speculative. A speculative question aims to elicit an answer based on conjec ture rather than the witness’s firsthand knowledge. This can be addressed by focusing on the witness’s actual knowl edge, steering away from broad guesses and assumptions. Contrast this to a “lack of personal knowledge” objection, which

challenges inquiries into matters the wit ness does not have firsthand or direct information about. Consider the follow ing speculative question: “Although you weren’t there, what measures could have prevented the accident?” 8. Asked and Answered. This type of question repeats an inquiry to which a response has already been given, even if phrased differently. Cure this by develop ing new areas of questioning. 9. Relevance. In Illinois, a party may question “regarding any matter relevant to the subject matter” including elements, defenses, records, persons, and locations. See Ill. Sup. Ct. R. 201. Relevance objec tions are seldom appropriate in a discov ery deposition unless opposing counsel significantly deviates from the subject matter of the case. 10. Vague/Ambiguous. Questions falling under this category are unclear, imprecise, or non-specific and are usu ally addressed by rephrasing the question. When raising a vagueness/ambiguity objection, be ready to succinctly explain your objection to opposing counsel if required. Resources Join the CBA to gain access to on demand and in-person CLE programs tailored to developing your deposition skills. Furthermore, familiarize yourself with the guidelines outlined in the Illinois Supreme Court Rules 202 through 224, covering essential aspects of depositions, such as the 3-hour limit, scope of exami nations, and rules specific to evidence depositions. For insights into corporate representative depositions, refer to Ill. S. Ct. R. 206(a)(1).

Andre Hunter, Jr., a litigation attorney at Gordon Rees, specializes in environmental, product/ premise liability, and commercial litigation; he also serves as a Director for the YLS.

CBA RECORD 27