Designating deposition testimony for presentation as trial evidence is an important part of trial preparation and should be treated with the same seriousness as any other testimony to be presented to the finder of fact. Much as in any other aspect of being successful at trial, preparation is key. As you assess and reassess your trial themes throughout a 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 that you know the points you want to make in your examination (or know the points your adversary 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 to develop 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.
The Applicable Rules: Know What Is Permitted
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. For purposes of this article, we discuss only Federal Rule of Civil Procedure 32. If you are in state court, you will need to review any state procedural and evidentiary rules applicable to deposition designations. Of course, other sources you should check are the court’s local rules, your judge’s individual practice rules, and any stipulations between the parties, to see if any affect your designations, counter-designations, 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)(2) through (8).
Rule 32(a)(1)(B) thus 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 that that 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)” (Rule 32(a)(3) (emphasis added)); and
- for any purpose if the witness is “unavailable” within the meaning of one of the categories expressly set forth in the rule (Rule 32(a)(4) (emphasis added)).
Note that any witness can be impeached with his or her own deposition testimony. We do not address here what constitutes proper impeachment. Significantly, you can use an adverse party’s deposition for any purpose, including in your own case in chief. An adverse party is any “officer, director, managing agent, or designee under Rule 30(b)(6)” of an entity that is a party. Therefore, in deposition, be sure to elicit testimony from the witness as to his or her title and role in the organization.
Deposition testimony from an “unavailable” witness—as that term is defined under Rule 32(a)(4)—also can be used for any purpose. In that regard, a witness is unavailable if he or she is “more than 100 miles from the place of hearing or trial or is outside the United States.” Before taking any deposition, therefore, do your homework as to whether the witness is within 100 miles of the court. If you believe the witness will be “unavailable” for trial under this rule, prepare for the deposition with the understanding that the judge or jury will likely hear only the deposition testimony. Even if the witness is “friendly” to your side of the issues, be prepared to question the witness as you would at trial because interests, circumstances, and allegiances can change. You do not want to miss the opportunity to get clarifying or favorable testimony on the record.
You also should consider the implications of Rule 32(a)(4)(E) in your case. That rule allows for use of a deposition instead of live testimony in “exceptional circumstances,” which may be more frequently invoked as trials get under way during and immediately following the COVID-19 pandemic.
Rule 32 also gives you a basis to ensure that there is a fair presentation of the deposition testimony. Rule 32(a)(6) provides that if your opponent proffers only part of a deposition, you can “require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.” Carefully consider other parts of the same deposition you want to include or counter-designate so that you provide the finder of fact with the proper context for the testimony, the complete testimony on the particular issue, or a better understanding of how the witness testified in toto on an issue. Of course, you should always balance that concern with presenting too much non-live testimony to the finder of fact. Always be focused and strategic on your use of designated testimony because whether you present the deposition testimony by video, role play, or reading from the transcript, there is a likelihood that the finder of fact will be less engaged with the testimony than if it were presented through a live witness.
Finally, Rule 32 provides a reminder (perhaps an obvious one) that your preparation should cover any prior testimony given by any party. Rule 32(a)(8) provides that a deposition from a prior action “involving the same subject matter between the same parties, or their representatives or successors in interest” can be used in a later action “to the same extent as if taken in the later action” or as allowed under the Federal Rules of Evidence. If your adversary gave damaging testimony in a prior lawsuit between the same parties involving the same subject matter, there is an argument under the rule that the testimony may be used in your case in chief in the later lawsuit, even if your adversary has taken steps to avoid the same mistake in the later lawsuit.
Objections to the Use of Depositions at Trial: Know Your Rules of Evidence
Rule 32(b) provides that—subject to certain objections that can be waived, such as to the form of a question—you can object to the admissibility “of any deposition testimony that would be inadmissible if the witness were present and testifying.” Rule 32(d) sets forth the types of objections that may be waived if not timely made at the deposition. Aside from those potentially waived objections, other objections are preserved until trial, such as that the testimony contains hearsay, is irrelevant, is unduly prejudicial, is cumulative, or is being proffered from a witness who is not “unavailable” within the meaning of Rule 32. A comprehensive understanding of the Rules of Evidence and the applicable procedural rules will serve you well in attempting to exclude testimony proffered by your adversary or, as noted above, supplementing the testimony your adversary proffers with additional testimony from the same deposition in the interest of fairness.
Deposition Designations: Know Your Themes and Your Audience
Deposition designations require advance preparation whether in print or video form. To use transcripts at trial, you must consider whether the case will be heard by a judge or a jury. Most federal and state court judges do not want the parties to read testimony into the record. Judges normally will specify a preference for lawyers to designate testimony by highlighting designations to reflect testimony being offered by the parties or jointly. Some judges overseeing a bench trial express different preferences for presenting objections to deposition designations. For example, some judges require a pleading designating the line and page numbers of the testimony objected to, while others require different formats (such as highlighting the testimony objected to with a different color and annotating the parties’ objections in the margins). Check your judge’s standing pretrial orders or inquire about the judge’s particular preferences with regard to deposition designations at a pretrial conference or other occasion that will leave sufficient time to prepare the designations properly.
A jury trial presents a different scenario from a bench trial with respect to deposition designations. A deposition in digital form or on videotape provides a more engaging method to present such testimony to a jury, and it will stand a better chance of holding the jury’s attention. Attention, however, must be paid to editing out extraneous testimony or colloquy among counsel. When video is not available, a procedure many judges follow involves reading the testimony into the record before the jury with one of the lawyers in the witness box responding to the deposition questions with answers directly from the transcript. In some cases, litigators will employ actors to play the role of the witness (although the court will need to allow this method). Regardless of the format in which deposition testimony is presented, the use of a witness’s deposition in your case requires preparation in terms of advance designations and resolution of any objections to ensure that the jury sees only what the judge has allowed. As a result, it is critical to have a firm understanding of the deposition testimony, how it fits into your case, and the applicable rules and procedures, including the court’s local rules and the judge’s standing orders or preferences, to ensure that the use of the deposition meets the court’s standards.
The use of depositions and deposition designations at trial represents one of the most important aspects of litigating a case. Eliciting testimony in support of your client’s positions at a deposition necessarily involves developing a theme for your case that may evolve over time but, at a minimum, provides the elements of a cohesive version of events to persuade the judge or the jury at trial. Depositions, as noted above, may be used in a variety of ways during the course of trial. And, in some instances, the judge actually will read a transcript, or a jury will hear testimony read from a transcript, if not watch a recorded version of the deposition. Thus, advance preparation and detailed knowledge of applicable procedural rules, evidentiary standards, local orders, and the judge’s preferences will allow a litigator to make the most effective use of depositions and deposition designations at trial.
Kenneth M. Klemm is a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, in New Orleans, Louisiana.
William D. Marsillo is a partner at Boies Schiller Flexner LLP in New York.
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