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Huh? There’s No “Form” Objection???

“For the record, Your Honor.” As an appellate attorney, I read plenty of appellate records. In this context, the record refers to all the court documents which includes the trial and hearing transcripts transmitted to the appellate court for review. The appellate attorney’s usual job is to read and review the entire record to see if there are any legal errors. Sometimes the court errors are actionable; sometimes they are not.

There is one that comes up often and is a common misconception. The misconception is that an “objection to the form of the question” is the catch-all objection that will preserve a potential error for later judicial review. Many seasoned Florida practitioners are surprised to learn that the often standard, non-specific, “objection to the form of the question” or simply, “objection, form,” is legally insufficient to preserve an evidentiary objection for trial or review, and, therefore, useless.

Although there is no way to pinpoint the beginning of this now-accepted-practice, it appears that the “objection to the form of the question” grew up over time as a way to avoid from making the taboo, faux pas, and frowned upon “speaking objection.” Basically, a speaking objection sounds exactly like what it is, and it is an objection where the objector offers a factual or legal explanation far beyond the necessary grounds to establish the objection. For example, “Objection, hearsay,” is sufficient to alert the trial court that the question and/or witness’s answer will call for a hearsay answer. On the other hand, “Objection, hearsay, this witness is testifying to what the other unnamed witness told them and this witness could not possibly know that answer” may draw the ire of the trial court as a “speaking objection.” Speaking objections are strictly verboten because the attorney is improperly introducing evidence into the trial that is not coming from the witness off the witness stand. Speaking objections may also taint a witness’s answers or impermissibly alert the jury to inadmissible evidence. In most cases, if the trial court needs further explanation, the trial court will invite the attorneys to the bench for an in camera (out of the earshot of the jury) conference to hear the objector out and make a ruling.

The same holds true for a deposition where the point of the inquiry is usually to find out what the witness may or may not know about the case. Improper, speaking objections, can improperly suggest answers to witnesses and taint the deposition. For instance, “Objection, hearsay,” sufficiently places the objection on the record, preserves the complaint, and ordinarily does not influence the witness’s testimony; however, “Objection, the witness cannot possibly know that answer” or “Objection, he does not know that” is usually followed by the witness who has picked up on the attorney’s objection now stating, “I don’t know” instead of answering the question. It is improper.

There are a few problems with the “form” objection. First, the “form” objection is trite, overused, misunderstood, and accomplishes nothing legally. From an error preservation point of view, the problem with the “form” objection is obvious: the speaking objection goes too far; the “bare-bones” objection to “the form of the question” does not go far enough. To preserve an objection during a deposition, the objection must be specific in its nature, and clearly and concisely state the grounds. Otherwise, the objecting party runs the risk of waiving the objection for further review (whether at the trial or appellate level).

At trial, 90.104, Fla. Stat., controls the introduction of evidence. It reads:

90.104 Rulings on evidence.
(1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and:
(a) When the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context; or
(b) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.
If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(2) In cases tried by a jury, a court shall conduct proceedings, to the maximum extent practicable, in such a manner as to prevent inadmissible evidence from being suggested to the jury by any means.
(3) Nothing in this section shall preclude a court from taking notice of fundamental errors affecting substantial rights, even though such errors were not brought to the attention of the trial judge.

Id. (Emphasis added). In general, Fla. R. Civil P. 1.310 plainly establishes the protocols and procedures for taking depositions. Subsection (c) clearly outlines the objection procedure. It reads:

(c) Examination and Cross-Examination; Record of Examination; Oath; Objections.

Examination and cross-examination of witnesses may proceed as permitted at the trial. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer’s direction and in the officer’s presence, record the testimony of the witness, except that when a deposition is being taken by telephone, the witness shall be sworn by a person present with the witness who is qualified to administer an oath in that location. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed at the initial cost of the requesting party and prompt notice of the request shall be given to all other parties. All objections made at time of the examination to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, or the conduct of any party, and any other objection to the proceedings shall be noted by the officer upon the deposition. Any objection during a deposition shall be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d). Otherwise, evidence objected to shall be taken subject to the objections. Instead of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

Id. (Emphasis added). This rule also applies to criminal depositions taken under Fla. R. Crim. P. 3.220. By way of further example, the Fifth District explained in Moyer v. Reynolds, 780 So.2d 205, 207-8 (Fla. 5th DCA 2001), that:

Just as Moyer contends, the record reveals that the trial court and counsel for both parties knew that the videotaped testimony of Dr. Slysh was trial testimony. Therefore, any objections should have been made at the time the question was asked and the grounds therefor should have been specifically stated. See § 90.104(1), Fla. Stat. (1999); Hoffman v. Jackson’s Minit Mkts., Inc., 327 So.2d 48 (Fla. 4th DCA 1976); Nat Harrison Assocs., Inc. v. Byrd, 256 So.2d 50 (Fla. 4th DCA 1971). Moyer further argues that Dr. Reynolds waived any objection not specifically made at the time the testimony was elicited. Although we agree with Moyer’s argument, we conclude that even if proper objections had been made, the trial court erred in not allowing the testimony regarding breach of the hospital’s policy and procedures.

Id., at 208. The above holding dealt with a sub-issue different from the general rule. Further, Rule 1.310 (d) explains:

(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, or that objection and instruction to a deponent not to answer are being made in violation of rule 1.310(c), the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition under rule 1.280(c). If the order terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of any party or the deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of rule 1.380(a) apply to the award of expenses incurred in relation to the motion.

Id. Logically, there would be no need for the trial court to oversee the deposition process, unless the process was subject to the trial court’s jurisdiction. Rule 1.310 deals with depositions in general. Similarly, Rule 1.330 deals with using depositions at trial. There are several other discovery rules that contribute in various ways to the administration and/or use of depositions.

Rule 1.330 (a) reads:

(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:
(b) Objections to Admissibility. Subject to the provisions of rule 1.300(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part of it for any reason that would require the exclusion of the evidence if the witness were then present and testifying.
(c) Effect of Taking or Using Depositions. A party does not make a person the party’s own witness for any purpose by taking the person’s deposition. The introduction in evidence of the deposition or any part of it for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision (a)(2) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party.

Id. (Emphasis added)

Although there are not a lot of cases the objection procedure at deposition, the case law interpreting and policing depositions continually focuses itself on the specific language “as permitted at trial.” The phrase strongly suggests that the deposition, whether noticed or not for use at trial, proceeds as if the witness were actually on the witness stand in open court. Based on the rules and case law, the testimony and/or evidence is subject to the rules of evidence. As with all trial testimony, a general objection, without stated grounds and/or specificity, almost universally fails to preserve an error for appellate review (unless the error is fundamental). See generally Jones v. Seaboard Coast Line R. Co., 297 So.2d 861 (Fla. App. 1974); Smith v. Gardy, 569 So.2d 504 (Fla. 4th DCA 1990), review denied, 581 So.2d 1310 (improper examination must be ruled on by the court “as permitted at trial.”); and Moyer, supra; But see David v. City of Jacksonville, 534 So.2d 784, 785-6 (Fla. 1st DCA 1988).

The conclusion is simple: to preserve an objection for the appellate court to review, the objection must be specific, concise, and timely (i.e., contemporaneously) to the trial court (or at deposition). Objections that do not state that actual grounds for the objection fail to meet the criteria for error preservation and are useless to preserve the perceived error for judicial or appellate review.

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm

No. 20-001

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