MAYOR AND CITY COUNCIL OF BALTIMORE v. THEISS, 354 Md. 234 (1999)

Did the trial court err in overruling [appellant]'s objections to deposition opinion questions, which would clearly have been improper if asked at trial, for the reason that counsel for [appellant] had not set forth his reasons for the objections during the deposition?

So far as the interrogatories are alleged to be leading, and therefore exceptionable, the objection comes too late. Such objections being only as to form, are always required to be made at the time propounded,in order to give a chance for correctioninto admissible form. The objection should have been noted before the commissioner.

The fourth exception raises a question with regard to which there is no exact adjudication in this State. The evidence of Charles A. Williams was being taken in Virginia under the provisions of section 16 of article 35 of the Code of Public General Laws. The plaintiff was represented at the taking of this evidence, but the defendant was not, and on the reading of the deposition, the 15th question was objected to upon the ground that it was leading, though no such objection appears to have been made or noted at the time when the testimony was taken. On behalf of the defendant it is urged that he was entitled at the hearing [in court] to object to the question on the ground of its leading character,Page 241and that it was his first opportunity to object because of the expense to which the defendant would be subjected if compelled to be represented by counsel at the taking of foreign depositions.

[I]t has long been the recognized rule in this State, that where a question was supposed to be objectionable upon this ground, the objection,and the reason for it must be noted atthe time[of the deposition], in order to afford the partypropounding the question an opportunity to reframe it in suchform that it would not be open to this objection. The rule is a most salutary and wise one if any regard is to be had for the rules of evidence, and the mere question of convenience or expense to a party litigant can not be permitted to outweigh the enforcement of the general rule.

The record does not show that the grounds of the objection were stated when it was made but it is now [on appeal] contended that it was objectionable because it was leading and also because it asked the witness the very question that the jury were to decide.

The . . . exceptions⁶are all urged in this Court solely upon the ground that the questions objected to were leading questions, but it does not appear from the record that this ground of objection was made in the trial Court, no specific ground of objection being there made. We think thePage 243objection to a questionas leadingshould be made at the time it is put, and before it is answered. Mr. Poe so states the rule inPoe's Practice, sec. 261, and says, "The reason is that if such an objection had been made at the time the question was put, it could and probably would have been obviated, and it would not be fair therefore to spring such objections afterwards. This is especially the rule in cases where testimony is taken under a commission." To sustain this text he citesSmith v. Cooke,31 Md. 174;Jones v. Jones,36 Md. 447;Kerby v. Kerby,57 Md. 361andBrown v.Hardcastle,63 Md. 495.Smith v. Cookewas a case where the depositions were taken under a commission, andKerby v. KerbyandBrown v. Hardcastlewere equity cases, where the rule is established.Jones v. Joneswas a case in the Orphans' Court where the testimony was taken before lay Judges. We have not found a case where the testimony was taken orally atnisiprius, in which this question has arisen, but we perceive no reason why the rule should not be the same in such cases, and Mr. Poe plainly lends his authority to this view in the citation above. These exceptions therefore are not tenable on that ground.

The requirement of noting a contemporaneous exception in order to preserve a question for later appellate review was firmly ingrained in the common law.See McCormick on Evidence§ 52, at 118-19 (E. Cleary 2d ed. 1972). The reason for the rule of contemporaneous exception, and its interaction with the additional requirement that a Bill of Exceptions be prepared and signed, were set forth by Professor Milton D. Green inBasicCivil Procedure, 254-55 (2d ed. 1979):

The purpose of a Bill of Exceptions was to bring before the appellate court for review matters which otherwise would not appear on the common law record due to the fact that there were no court reporters to record the testimony and the proceedings at the trial. This was before the days of shorthand and recording devices. After the Statute of Westminster II if a litigant believed the court had erred in a ruling, he could make it a matter of record by "saving his exception." For example, if counsel had objected to a question asked of a witness and the court had overruled the objection and counsel thought the ruling was erroneous, he could say, "If the court please, I desire to save an exception to your honor's ruling." The judge was then obliged to stop the trial and call the scrivener who, with his quill pen, would make a record on parchment. . . . When this document was completed, it would be signed by the judge. During the course of the trial numerous exceptions might be "saved." At the conclusion of the trial they would be bound together and certified by the trial judge as the Bill of Exceptions in the case, and they would be attached to and become a part of the record on appeal. Today, with modern methods of court reporting, this antiquated method of preserving a record has become obsolete and court rules make "exceptions" unnecessary. (footnote omitted).

With the advent of court stenographers and required verbatim accounts of trial proceedings, the need for contemporaneousPage 245exceptions ceased to exist. By the adoption in 1945 of Court of Appeals Rule 17, the "unnecessary and outmoded formalit[y]" of noting exceptions to rulings or orders of the court was ended.Elmer v. State,239 Md. 1, 6-9,209 A.2d 776(1965). Rule 17 provided that:

Formal exceptions to the rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.

The modernization of appellate procedures accomplished by Court of Appeals Rule 17 and successor rules, while fully effective for purposes of ordinary appeals, had no effect on the procedure to be followed in appeals to in banc courts. Prior to 1984, Rule 510 remained in effect, specifically requiring the reservation of issues by means of exceptions. As a result, an outmoded procedure remained to unnecessarily complicate in banc appeals. Aggravating the situation was the fact that attorneys coming to the bar after 1945 were unfamiliar with the practice of noting formal exceptions to rulings or orders — a practice that had been second-nature to their predecessors. Because of the requirement that an exception be noted of record on the day the point or question was decided, in banc appeals were essentially unavailable in those cases in which a judge filed an order with the clerk and notified the parties by mail. Moreover, there was uncertainty concerning the time within which anPage 246oral exception had to be reduced to writing and signed by the trial judge. SeeFaber v. Wolfe,41 Md. App. 458,397 A.2d 270(1979), holding that an oral exception must be reduced to writing within a "reasonable time."Compare Thomas v. Ford, supra, 63 Md. at 348.

When review by a court in banc is permitted by the Maryland Constitution, a party may have a judgment or determination of any point or question reviewed by a court in banc by filing a notice for in banc review within the time prescribed by Rule 1012 for a filing of an appeal. Issues are reserved for in banc review by making an objection in the manner set forth in Rules 2-517 and 2-520.

All objections made during a deposition shall be recorded with the testimony. An objection to the manner of taking a deposition, to the form of questions or answers, to the oath or affirmation, to the conduct of the parties, or to any other kind of error or irregularitythat might be obviated or removed if objected toat the time of its occurrence is waivedunless a timely objection is made during the deposition. An objection to the competency of a witness or to the competency, relevancy, or materiality of testimony is not waived by failure to make it before or during a deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time. [Emphasis added.]

The officer shall keep a log of all objections made during the deposition and shall reference them to the time shown on the clock on camera or to the videotape or audiotapePage 248indicator. Evidence objected to shall be taken subject to the objection. A party intending to offer a videotape or audiotape deposition in evidence shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered within sufficient time to allow for objections to be made and acted upon before the trial or hearing. Objections to all or part of the deposition shall be made in writing within sufficient time to allow for rulings on them and for editing of the tape before the trial or hearing. The court may permit further designations and objections as justice may require. In excluding objectionable testimony or comments or objections of counsel, the court may order that an edited copy of the videotape or audiotape be made or that the person playing the tape at trial suppress the objectionable portions of the tape. In no event, however, shall the original videotape or audiotape be affected by any editing process.

Agenda Item 3. Consideration of a policy question regarding Rules 2-416 (g) and 2-419 (d).

Ms. Richards, Chairman of the Discovery Subcommittee presented the policy issue for the Committee's consideration. She informed the Committee that she had received a letter from Henry I. Greenberg, Esquire asking the Committee whether parties attending a videotaped deposition of an expert, intended for use at trial, must make all objections at the deposition as if they were at trial or the objections would be waived. Ms. Richards explained that the letter described a situation where certain objections, not made during the deposition, were raised for the first time before trial. The court allowed the objections relying on Rule 2-419 (d) which provides in part that:

Subject to Rules 2-412 (e), 2-415 (g) and (i), 2-416 (g), and 2-417 (c), an objection may be made at a hearing or trial to receiving in evidence all or part of a deposition for any reason that would require the exclusion of the evidence if the witness were then present and testifying.

Mr. Brault remarked that videotape depositions of out-of-state experts are used as a precautionary measure because trials are often subject to delays. He added further that flexibility in the rule is important, and that the rule should not requirenon-curableobjections to be made during the course of the deposition.

to preserve a deposition objection to any error or irregularity that might be cured if a timely objection had been made at deposition, the objecting party must state the ground for the objection before the conclusion of the deposition, so that the opposing party will have a chance to cure or obviate the error or irregularity.

Rule 2-415(g) shows that the reason an objection to a defect [in any question or answer that can be immediately cured] must be made, in a timely fashion, during the deposition is so that the questioner will have an opportunity, during the deposition, to clear up the problem. The drafters of the rules did not wish a litigant to be prejudiced by a slip of the tongue or any other error that could be easily cured. If it were sufficient merely to utter the word "objection" when some flaw exists in a question or answer, that purpose oft-times would not be fulfilled. For instance, a questioner, even if he or she is a well-trained lawyer, may not know what "error or irregularity" needs correcting if a specific objection is not made. At deposition, attorneys can, and often do, object to questions for invalid reasons or for no reason at all. Moreover, counsel, although they are not required to do so, often object to questions or answers (e.g., answers containing hearsay) where the error or irregularity could not possibly be corrected even if the problem were brought to the attention of those in attendance at the deposition. Given these well known realities, the interpretation of Maryland Rule 2-415(g) advanced by appellants would allow counsel at deposition to interpose scores of non-specificPage 254and frivolous objections and then interpose a valid objection to a defect in a question that could be immediately cured. The barrage of frivolous objections might well cause an opponent to overlook the defect in a question or answer that was immediately curable. Such an interpretation would not fulfill the purpose of the rule and would run afoul of the requirement that the Maryland Rules be interpreted to secure fairness in administration.

permitting videotape depositions probably would work to the advantage of less wealthy parties by making experts more available to them, in that an expert would generally be more willing to testify in his office or at some other non-court setting for a modest fee. Furthermore, less of the expert's time would be necessary to acquire his testimony.

The Committee believes that considerations of economy andconvenience in arranging for medical and expert testimony,coupled with the ability of videotape to convey most of theinformation and impressions available from in-person testimony,justify the unrestricted use of videotape depositions as asubstitute for "live" testimony from such witnesses.