March 03, 2015 Articles

New Tips for Examining Your Own Witnesses and Using Their Depositions at Trial

Following recent amendments to the Federal Rules, it may be worth rethinking traditional approaches

By Sanket J. Bulsara and Ari J. Savitzky

The conventional wisdom looks askance at questioning your own witnesses during their depositions, and at using those depositions at trial. Following recent amendments to the Federal Rules of Civil Procedure, it may be worth rethinking the traditional approach.

Whether by custom or misunderstanding of the rules, many lawyers defending depositions forgo the opportunity to ask their witness questions at the end of the deposition. “Traditionally, defending counsel did not ask any questions at the deposition of the party witness or a friendly witness.” David M. Malone et al., National Institute of Trial Advocacy, The Effective Deposition: Techniques and Strategies That Work 245 (3d ed. 2006). Many lawyers assume that because the witness—who, for example, may be an employee of a party or a party’s officer—is under his client’s “control,” they must produce the witness at trial and cannot, therefore, offer the witness’ deposition testimony. See 8A Charles A. Wright et al., Fed. Prac. & Proc. Civ. § 2147 (3d ed. 2010) (“There has been some controversy, however, about the use by a party of his or her own deposition.”). With such a view, asking questions at the end of the deposition of your own witness serves little purpose—it only gives the other side a free preview of direct examination.

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