The other day I was in a multiparty deposition, with 15 or so lawyers sitting around a long conference room table.  One lawyer was asking questions, and two or three lawyers were lodging the obligatory objections to questions that just did not sound right to the lawyers who were actually paying attention. Normally this scenario would not merit mentioning, let alone justify a blog post.  But at one point in the deposition during an exchange one lawyer boldly exclaimed “CERTIFY THE QUESTION!”  And that got me to thinking about what it means to “certify the question” in a deposition.  Do you have to “certify the question” to evoke the court’s ability to compel an answer to the question?  Or for that matter, what special steps must you take to ensure that the judge can rule on objections asserted during a deposition?

Since 1999, oral depositions have been covered in Rule 199 of the Texas Rules of Civil Procedure.  Rule 199.5(d) requires counsel to cooperate and be courteous to one another and to the witness.  It also encourages the witness to not be evasive, and prohibits private conferences between the witness and the witness’s attorney during the actual taking of the deposition.  That all seems straight-forward.

Rule 199.5(e) limits the objections to “Objection, form,” “Objection, leading,” and “Objection, nonresponsive.”  The first two objections are targeted at the questions, and the last objection is targeted at the answer.

Under Rule 199.5(f), an attorney can instruct a witness not to answer a question only when necessary to preserve a privilege, to comply with a court order or the Texas Rules of Civil Procedure, or to protect a witness from an abusive question or one for which any answer would be misleading.

If an attorney objects to a question or instructs a witness not to answer a question, the attorney must be prepared to “give a concise, nonargumentative, nonsuggestive explanation of the grounds for the objection or instruction if asked by the party who asked the question.

Rule 199.6 sets for the procedure for obtaining a ruling on any objections or instructions not to answer.  The party asking the question may, at any reasonable time, request a hearing on an objection or an instruction not to answer to preserve a privilege, and the party seeking to avoid the discovery must present evidence to support the objection or instruction through affidavits filed seven days before the hearing, or through live testimony at the hearing.

And in a nutshell, that’s all there is to the rules controlling depositions taken under the Texas Rules of Civil Procedure.  So where’s the “certify the question” language?  A long time ago there was a procedure for certifying questions during oral depositions, but that procedure has not been around for years.  Nowadays when an attorney blurts “certify the question” the attorney is showing his or her age.  Under the Texas Rules of Civil Procedure, there are no special words to say to empower the court to rule on objections or instructions not to answer.  As Rule 199.6 plainly states, all that is required is that the asking party request a hearing “at any reasonable time.”

So why do attorneys still “certify the question?”  The practical reason is to alert the court reporter to mark the question so that the party asking the question easily can find the particular part of the transcript that is at issue.  Theoretically an attorney could use any descriptive term or language so that the term is easily searchable once the transcript is available.  I have heard attorneys request the court report to mark the question, and the court reporter then notes in the table of contents that there is a question marked with the page number.  Whether you certify the question or mark the question, you just need a way to find the disputed question so that you can put the disputed question before the court in a hearing “at any reasonable time.”

So the next time you hear an attorney certify the question, you’ll know that certifying the question in an oral deposition is just a way of highlighting the transcript so that the attorney asking the questions can go back later and review the question and decide whether the attorney wants to move to compel the witness to answer the question.  And the next time you believe that you are entitled to an answer to a question that the witness will not answer, look straight at the court reporter and say “hakuna matata.”