September 29, 2020 Articles

Considerations on the Use of Depositions at Trial

Know what is permitted, know your rules of evidence, and know your themes and your audience.

By Kenneth M. Klemm and William D. Marsillo

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.

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