A CASE FOR RETIRING THE "CALLS FOR SPECULATION" OBJECTION

Written by Ian Pike

"Objection. Calls for speculation." Nearly every litigator has heard it and used it. Despite its deep-seated place in legal jargon, the "calls for speculation" objection is not only pointless, it is potentially harmful to the objecting attorney’s case. This article will explain how and why that is the case because (a) most lawyers needlessly use the "speculation" objection when they actually mean "lacks foundation," (b) even a speculation objection lodged to a flawed question is unnecessary during a deposition, and (c) partly as a consequence of those two facts, using the "speculation" objection does more harm than good.

A. MOST "SPECULATION" OBJECTIONS ARE UNNECESSARY "FOUNDATION" OBJECTIONS

Lawyers defending depositions often object on "speculation" grounds not because a question directs a witness to guess but because they think, based on some combination of intuition and insider knowledge, that a witness may not be able to answer the question based on personal knowledge. That such objections are often followed with "you can answer if you know" is telling here because, if the question itself facially called for speculation, the "if you know" qualifier would be superfluous. Thus, in many cases, a speculation objection is really an inarticulate objection based on an apparent lack of foundation showing the witness’s testimony is based on personal knowledge.