February 23, 2023

By The Legal Intelligencer’s The Young Lawyer Editorial Board

Let’s set the record straight. There are no “usual stipulations” that apply to depositions.

Although some attorneys may share a vague understanding about the usual stipulations, the phrase has no established meaning. In fact, there is no rule, case, or statute that defines the usual stipulations. “Everyone purports to know without asking the content of the ‘usual stipulations’ until a dispute arises; the ephemeral nature of the parties’ understanding is then quite apparent.” See United States v. Liquid Sugars, 158 F.R.D. 466, 473 n.8 (E.D. Cal. 1994).

Because the phrase has no accepted meaning, an attorney should respond to a proposal for the usual stipulations by asking, “What do you mean by the usual stipulations?” The question might elicit shock, anger, or some patronizing retort like, “I’m surprised you don’t know what the usual stipulations are.”

You may feel tempted to agree to the usual stipulations without any clarification. This is especially true for newer lawyers, who fear that asking for an explanation will reveal their inexperience. But there is no reason to be embarrassed. In all likelihood, the attorney proposing the usual stipulations has no idea what the phrase means.

Many attorneys simply mimic what they perceive to be a common practice without questioning whether the practice makes sense. These same attorneys might argue, “I’ve done hundreds of depositions, and no one has ever refused the usual stipulations.” That may be true, but a prevalent practice can still be a flawed practice.

Consider these two common versions of the usual stipulations: “reserving all objections until trial or there is an attempt to use the deposition” or “reserving all objections except to the form of a question.” While neither helps the taking attorney, both give the defending attorney a strategic advantage beyond what the rules provide.

Under Rule 32(d)(3)(B) of the Federal Rules of Civil Procedure, the defending attorney must object to any defect that can be cured during the deposition, or the objection is waived. Curable matters include errors in the form of a question or answer, the manner of taking the deposition, the oath or affirmation, or a party’s conduct. Pennsylvania’s counterpart, Rule 4016, is largely the same.

What constitutes a curable—i.e., waivable—objection varies from jurisdiction to jurisdiction. That said, the following are generally recognized as proper objections to the form of a question: leading, ambiguous, argumentative, compound, misleading, mischaracterizing, assumes facts not in evidence, lacks foundation, asked and answered, and calls for privileged information. The usual noncurable objections are relevancy, prejudice, and competency.

Agreeing to reserve “all objections” gives defending attorneys a strategic advantage by eliminating their duty to make curable objections or risk waiver. Reserving “all objections except to the form of a question” cedes less ground, but still helps defending attorneys who would otherwise have to object to problems with an answer, the manner of taking the deposition, the oath or affirmation, or a party’s conduct.

The taking attorney, in contrast, gains nothing from either stipulation. If anything, the taking attorney is now vulnerable to surprise objections when trying to use the deposition testimony in a motion or at trial.

Imagine, for example, a slip-and-fall case in which the plaintiff deposes the store’s janitor. After counsel stipulate to reserve all objections, the janitor testifies about his manager’s disregard for customer safety. The deposition seems to be a resounding success for the plaintiff.

As trial approaches, plaintiff’s counsel learns that the janitor has disappeared or is beyond the court’s subpoena power. Undaunted, plaintiff’s counsel recalls they can use the janitor’s deposition testimony because he is now an unavailable witness. At trial, plaintiff’s counsel announces their intent to read portions of the janitor’s deposition to the jury.

Now for the surprise. Defendant’s counsel rises and says, “Your Honor, at the time of the deposition, we stipulated to reserve all objections. I wish to make those objections now. My first objection is to counsel’s question on page 3, line 2 … .” Plaintiff’s counsel is aghast when the court sustains the objections and rules that the deposition testimony is inadmissible. Worse yet, plaintiff’s counsel realizes that the objections could have been cured with more questions, had the objections been made at the deposition.

The moral of the story is that a taking attorney should never stipulate to reserving objections. A defending attorney, on the other hand, should always try to reserve objections.

Some may argue that the usual stipulations help the taking attorney avoid distracting objections and colloquy. But in practice, a stipulation to reserve objections rarely prevents interruptions. Defending attorneys often find reasons to object, even when all objections are reserved.

Besides, the rules already bar strategic interruptions, including suggestive and argumentative objections. Rule 30(c) of the Federal Rules of Civil Procedure, for example, contemplates that objections will be made by stating the word “objection,” plus one or two words to explain the specific legal grounds for the objection. Some state courts and individual judges are even more restrictive, allowing only “objection” or “objection, form.”

The bottom line is that reserving objections under the guise of “usual stipulations” benefits only the defending attorney. For that reason, taking attorneys should insist that a deposition be taken “pursuant to the rules.”

Reprinted with permission from the February 23, 2023 edition of the Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.