A REFRESHER ON ASSERTING RIFKIND OBJECTIONS AT DEPOSITIONS

You are defending your client at a deposition. Opposing counsel then asks your client:

Q. “Do you agree that you were at fault for the accident?”

ATTORNEY: Objection: Rifkind.

It is quite typical for opposing counsel to try to get your client to admit that he or she was at fault for an accident during their deposition in a lawsuit. Such “legal contention” questions during a deposition are improper and should be properly objected to by the attorney pursuant to Rifkind v. Superior Court (1994) 22 Cal. App. 4th 1255.

Rifkind holds that it is improper to ask legal contention questions during a deposition. While legal contention questions may be asked of a party during written discovery, such as by way of written interrogatories or request for admissions, such questions at a deposition are improper. The rationale is that a deponent should only be required to respond to factual questions based upon the deponent’s own personal knowledge and not have to testify as to the application of those facts as to the legal contentions asserted in the case. This is because the deponent does not have the legal expertise without the assistance of counsel to understand the implication of the facts as applied to the law in formulating the client’s legal contentions of the case.

Not only is it important to assert the objection, but it is as equally important to ensure that you instruct your client not to answer the legal contention question. Although as a general rule an instruction not to answer at a deposition after objection is reserved for a legal privilege (i.e. attorney client privilege), it is still proper to instruct a client not to answer a question that is clearly in bad faith or in violation of well settled law. In this example, asking the deponent to answer a legal contention when Rifkind clearly states that it is not a proper question at a deposition would be considered in bad faith and in violation of well settled law.

Here is a sample exchange of questioning and objections in this type of circumstance:

Q. Do you agree that you were at fault for the accident?”

ATTORNEY: Objection: Rifkind. Calls for a legal contention. I am instructing my client not to answer.

Q. Counsel, it is improper for you to instruct your client not to answer a question that is not based upon a legal privilege.

ATTORNEY: And counsel it is improper for you to ask a bad faith question that violates the well settled rationale of Rifkind. You are free to either rephrase your question so it does not call for a legal contention or ask that specific question in an interrogatory.

Q. We will have to file a Motion to Compel and bring your client back for a second deposition.

ATTORNEY: Again counsel, I invite you to ask a proper question that does not violate Rifkind. Please feel free to rephrase your question.

In conclusion, it is important to protect your client’s legal rights during a deposition. Your client should not be required to answer a legal contention question during a deposition that may negatively impact your client’s legal position in the case.