The Lawyer Doth Protest Too Much, Methinks: Reconsidering the Contemporaneous Objection Requirement in Depositions
E. Stewart Moritz
University of Akron - School of Law
University of Cincinnati Law Review University of Cincinnati Law Review, Vol. 72, No. 1353, 2004
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.
Number of Pages in PDF File: 69
Keywords: civil procedure, discovery, depositions, objections
JEL Classification: K41
Date posted: January 10, 2005