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Abstract:
This article argues for the elimination of the contemporaneous objection requirement for depositions.

From the original 1938 framing of the Federal Rules of Civil Procedure to the present, no one has recognized that the theory behind the contemporaneous objection rule in depositions, as drawn from pre-Rules equity practice, does not match the function of depositions in our post-Rules system of open discovery. Pre-Rules depositions were exclusively testimony-preservation devices, and never discovery tools, and the common law and statutory procedural rules for pre-Rules depositions, including the contemporaneous objection rule, reflected this use. But when the original Federal Rules of Civil Procedure converted depositions into primarily fact-discovery devices, the older procedural rules were incorporated into the new Rules, nearly wholesale, and without consideration - and there they remain.

Perceived problems with deposition practice have in the last ten years resulted in a number of modifications to the discovery rules, and other proposals to curb aggressive use of objections in depositions. Before 1993, in the federal civil system, the Rules did not specify the manner in which deposition objections were to be made, leading a chorus of commentators to decry the prevalence of speaking and coaching objections. Revisions in 1993 to the Federal Rules of Civil Procedure for the first time required deposition objections to be made concisely and in a non-argumentative and non-suggestive manner. In 1999, the Texas state courts went so far as to limit all objections to deposition questions to two words, either Objection, leading or Objection, form.

However, all these modifications and proposals share the pathology of the original Rules: they fail to recognize the theoretical disconnect between antiquated testimony-preservation focused procedural rules and the now-primary use of depositions as fact-discovery devices. Thus, the proposals have focused on treating discovery abuse, rather than addressing the real problem, which is a fundamental misconception of the proper, less-adversarial role of attorneys in depositions. Rather than treat the symptoms, elimination of the contemporaneous objection rule will address the disease, and bring deposition practice more into line with the theory of open discovery upon which its modern incarnation is based.

civil procedure, discovery, depositions, objections

Abstract:
The article offers a chronological history and a critique of the rhetoric of both Republican and Democratic senators concerning the pace of lower-court confirmations during the 107th Congress. Much of that recent rhetoric, spanning the years 2001 to 2002, relies upon comparisons of then-current nomination success rates to judicial confirmation statistics from the Carter, Reagan, Bush I, and Clinton presidencies. Through carefully analyzing the claims of senators concerning Bush II's first-Congress judicial appointments, the article is able to present an overview of more than twenty years of Senate behavior with respect to the pace of lower-court confirmations. In doing so, the article identifies a number of confirmation process fallacies repeatedly relied upon by senators in their efforts to make political points out of the pace of the confirmation process. It also explains some confirmation process relevancies, in hopes that future debates can be grounded on important considerations rather than on those that are trivial and irrelevant. Because the lower-court confirmation mess is sure to return to prominence during the Democrat-controlled Senate that will be constituted in early 2007, and following the 2008 presidential elections and beyond, the author hopes that the article will help establish a baseline for arguments about delay in the process, particularly when the White House and Senate are held by different political parties.

judicial confirmation, judicial nomination, judges, senate delay