Ask the Deponent to Guess

Authors: David Markowitz and former Markowitz Herbold litigator Lynn Nakamoto

We all prepare witnesses at depositions to avoid guessing, speculating, responding to incomplete hypothetical questions, and jumping to conclusions. When the deponent is our client, we cringe at guesswork. And, if the deponent is adverse to our client, we track down actual knowledge if we don’t like the answer to a question. Some attorneys even begin their depositions by disclaiming any interest in obtaining guesses from the deponent. Yet, there are circumstances when demanding the deponent’s speculation and guesswork pays dividends in terms of efficiency and real (and admissible) knowledge about the relevant facts in a case. Under the federal rules and local practice, questions calling for guesses are not subject to instructions not to answer, and such questions can be a valuable tool in depositions.

The questions we are talking about are those such as, “What is your best guess as to why X happened?”or “Would you guess that defendant was or was not speeding before the accident?” or “If A and B were the case, what would you guess took place next?” Such questions openly call for guesses. They are subject to objections that the question calls for speculation, that the question lacks foundation establishing personal knowledge, or that the question is based on an incomplete hypothetical. When objections are raised, the questions and answers clearly are not admissible. Although indisputably improper in form, such questions can be asked in depositions. That is because of amendments to FRCP 30 and local deposition practice in state court cases and because they are designed to lead to admissible evidence.

Grounds for directing a deponent not to answer a question in federal court are circumscribed. Under FRCP 30(d)(1), any objection “must be stated concisely and in a non-argumentative and non-suggestive manner,” and the deponent may be instructed not to answer “only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).” The grounds for a motion under Rule 30(d)(4) are a showing that the deposition is being conducted in bad faith or “in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or party.” None of the grounds provided in FRCP 30(d) serve to justify an instruction not to answer a question calling for a guess.

Similarly, under state law, the Multnomah County Deposition Guidelines state:

"OBJECTIONS: ORCP 39(d) creates a mechanism so that the attorney whose question is objected to may accept the objection as an invitation to correct an alleged defect in the questions; rejection of the invitation may result in the exclusion of the question and answer at trial. Attorneys should not state anything more than the legal grounds for the objection to preserve the record, and the objection should be made without comment to avoid contamination of the answers of the witness. Argument in response to the objection is neither necessary nor desirable.

INSTRUCTIONS NOT TO ANSWER: The only basis for an instruction not to answer a question reasonably calculated to lead to the discovery of admissible evidence is in response to an attempt by the attorney taking the deposition to inquire into an area of privacy right, privilege, an area protected by the constitution, statute, work product, or questioning amounting to harassment of the witness. Any other objection to inquiry, such as lack of foundation, competence, asked and answered, etc., can be preserved with recitation of a brief objection.”

Thus, in state and federal cases, although one can object to questions calling for speculation, the deponent cannot be instructed not to answer on that basis.

Although the immediate question requiring the deponent to guess and the responsive guess themselves are likely inadmissible, the line of questioning that follows can lead quickly to admissible evidence. This sort of testimony requires the deponent to search out the most likely explanation or set of circumstances, or at least one that is more probable than others. The deponent does so based on a limited set of information and assumptions, and the next question elicits the relevant causal factors or other facts and assumptions that the deponent relied upon in making the guess. This eliminates the more laborious process of the questioner, through multiple questions, narrowing the universe of potential relevant facts that might have had some bearing on the issue; instead, the deponent discloses them, at least from his or her perspective. The follow-up questions and answers can then be structured to provide evidence regarding the underlying facts from which inferences can be drawn for the factfinder. Asking a few questions that would be subject to objections in the deposition can provide a shortcut to valuable admissible evidence.

This article appeared in the October 2002 issue of the Oregon State Bar's Litigation Journal.

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