consiDerations on the use of Depositions at triaL
Trial & litigation Section Chair : Chad Moore , Morgan & Morgan , PA check your judge ’ s standing pretrial orders or inquire about the judge ’ s particular preferences with regard to deposition .
Designating deposition
testimony for presentation as trial evidence is an important part of trial preparation and should be treated with the same attention to detail as any other testimony to be presented to the finder of fact . Preparation is key . As you assess your trial themes throughout litigation , you should consider how particular witnesses fit into your planned presentation of those themes . That assessment should be done both before and after a witness ’ s deposition — before so you know the points you want to make in your examination ( or know the points your opponent will want to make so you can better prepare the witness ), and after so that you can assess whether the testimony requires any modification of your themes . A good habit is to highlight and summarize the deposition transcripts while the testimony is still fresh in your mind and to organize the issues in a way that will make the use of deposition testimony at trial , including designations and counter-designations , easier and more efficient .
To understand whether you can use deposition testimony at trial , you need to look to the applicable rules of civil procedure and evidence , and understand the implications of those rules . You
should also check the court ’ s local rules , your judge ’ s individual practice rules , and any stipulations between the parties , to see if any affect your designations , counterdesignations , and objections .
Federal Rule of Civil Procedure 32 and the Federal Rules of Evidence govern the use of deposition testimony at hearings and trial in federal court . Whether you will be able to use deposition testimony at trial will depend on the particular facts and circumstances of your case , including the deponent ’ s identity , the manner in which you intend to use the testimony , and the nature of the testimony you are proffering . Rule 32 ( a )( 1 ) provides the following :
( 1 ) In General . At a hearing or trial , all or part of a deposition may be used against a party on these conditions : ( A ) The party was present or represented at the taking of the deposition or had reasonable notice of it ;
( B ) It is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying ; and ( C ) The use is allowed by
Rule 32 ( a )( 1 )( B ) makes clear that regardless of what the rest of the rule provides , you have to be prepared to demonstrate that the deposition or the part you intend to use at trial “ would be admissible under the Federal Rules of Evidence if the deponent were present and testifying .” You should therefore look to the Rules of Evidence not only in considering what deposition designations to make but also in reviewing your adversary ’ s designations and assessing possible objections , such as hearsay or other evidentiary deficiencies .
Rule 32 ( a )( 2 ) through ( 4 ) provides that a deposition transcript can be used in the following ways :
• to impeach the deponent or other use allowed under the Rules of Evidence ( Rule 32 ( a )( 2 );
• for any purpose if the deponent was a party or “ was the party ’ s officer , director , managing agent , or designee under Rule 30 ( b )( 6 ) or 31 ( a )( 4 ); and
• for any purpose if the witness is “ unavailable ” within the meaning of one of the categories expressly set forth in the rule ( Rule 31 ( a )( 4 ).
Rule32 ( a )( 2 ) through ( 8 ). continued on page 59
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