- There was a time when everybody went through certain steps when impeaching a witness with a deposition.
- But Federal Rule of Evidence 613(a) says it is absolutely not required.
- Trial testimony was the original purpose of a deposition.
Judge Gunn was deliberately humiliating Regis McCormick. “Counsel,” he said, “you are a relatively new member of the bar, and so I am going to make allowances. But I must admit your ineptitude in handling this witness is a persuasive argument for why lawyers should be required to have a course in trial tech- niques and also sit as second chair in a number of trials before floundering around by themselves in open court.”
Regis remained quiet and respectful. When Judge Gunn stopped ranting, Regis said, “I understand the court is unhappy with something I have either done or not done, but I frankly don’t know what it is.”
Gunn sighed. “Counsel,” he said, “there is one way to use a deposition in my court—the right way. You cannot simply start asking questions about a witness’s deposition.
“First, you must get the witness firmly committed to the testi- mony you wish to impeach or contradict.”
“Second, you must ask the witness if he remembers having his deposition taken on the day it was conducted.”
“Third, you must cite the appropriate page and line of the deposition to the court and opposing counsel.”
“Fourth, you must read your question and the witness’s answer to the witness.”
“Finally, you must ask the witness whether that was a question you asked and the answer he gave on that occasion.”
Later, in the Brief Bag, Judge Gunn was complaining about the lack of experience of young lawyers, and Angus took him on.
“Sorry, judge, but I’ve got to side with Regis on this one. The problem is, you think yesterday’s custom is today’s law—and that’s not necessarily true.
“There was a time when everybody went through that litany of yours when impeaching a witness with a deposition. But the Federal Rules of Evidence say it is absolutely not required. Rule 613(a) says, ‘In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.’”
“But this wasn’t a prior inconsistent statement,” said Judge Gunn. “It was a deposition.”
“Come on, Judge, that’s just the point. It was a prior inconsis- tent statement that happened to be in a deposition. And just because it was in a deposition doesn’t mean that the rules of evidence are any different.”
Gunn shrugged. “I never thought of it that way, Angus. You know, you might be right.”
Angus smiled. “One other thing. You said there was only one way to use a deposition. I can’t agree with that. There has to be at least half a dozen different ways you can use a deposition in trial.” Later I talked with David Malone of Washington, D.C., about what had happened. Malone is one of the founders of the Deposition Program given by the National Institute for Trial Advocacy, and gives a talk about how to use depositions. We started out agreeing with Angus that there are at least six different ways to use a deposition at trial, but by the time we were done, we had hammered out a total of nine. Here they are.
This was the original purpose of the deposition. If a witness was gravely ill or was going to be out of the jurisdiction at the time of trial, you could preserve his testimony with a deposition. That is still the approach in Canada, where you do not take depositions of ordinary witnesses except for good cause.
Today, even though we talk about the differences between “evidence depositions” and “discovery depositions,” the law makes no distinction between them. The rules do not care why we take a deposition. It can be used for discovery or as a substitute for the witness’s live appearance at trial, or both.
Illinois is a notable exception. Under the Illinois rules, you must give your opponent notice that you intend to use a deposition as a substitute for testimony at trial. Otherwise it can only be used to impeach the witness.
There is, by the way, a lot to be said for the Illinois approach. When a deposition cannot be used as testimony, objections are not so much of a problem. The main concern is whether the question calls for something that is properly discoverable. But with the standard state and federal deposition, you have to worry about whether it might be used at trial even when it seems like it is just a discovery deposition. And because a lot of lawyers are not sure which objections are waived if they are not asserted at the deposi- tion, they object to everything. The result is our present system invites a lot more squabbling in depositions than we need.
Even though you take an evidence deposition, you cannot automatically use it at trial. We have a preference for hearing the real witness. So under Rule 32(a)(3) of the Federal Rules of Civil Procedure, you will have to show the witness is dead, sick, in prison, or somehow really unavailable to use his deposition. The escape valve is Rule 32(a)(3)(E), which allows you to use a deposition “on application and notice” when “exceptional circumstances” make it desirable not to use the real witness. This is the rule that lets the doctor play golf instead of coming to court—which may save expenses, but which takes its toll in the quality of the trial.
Presenting a deposition at trial takes some real thought. While the judge will probably let you just stand there and read it to the jury, that is not a very good choice. Instead, try reenacting the deposition. Most judges will permit you to read the questions and have someone else—preferably someone with what it called an “affidavit face”—read the answers.
The one reading the answers does not have to be someone from your office. You can hire a professional actor or actress if you like, or even use the court reporter who took the deposition (which can be a very nice touch).
You do not need to read the whole deposition. Pick what you want, remembering that your opponent can introduce what you leave out under Rule 106 of the Federal Rules of Evidence—either as something the court requires you to present or as what is in effect “cross-examination.”
Do you think that video depositions are necessarily better than readings or reenactments? A one-camera deposition can be deadly—particularly if it lasts more than an hour. Few things are more boring that watching a video screen that shows a talking head answering questions from a disembodied voice that comes from off screen.
So if you are going to use a video deposition, there are some important things to do:
Finally, remember to ask the judge to instruct the jury that depositions are formal testimony, made under oath, recorded before the rest of the trial, and that they are to be given the same weight as if the witness were able to come to court.
An admission is anything said or done by a party-opponent that is inconsistent with the position he takes at trial. So if it is in your opponents’ deposition and it hurts them, it is an admission. Get ready to use it at trial.
Before we go any further, look at Rule 801(d)(2) of the Federal Rules of Evidence to see the different kinds of statements that qualify as admissions:
An admission in a deposition gives you a tremendous amount of flexibility. First, you don’t need a witness on the stand to read it to the judge or jury. You don’t even need to do anything to authenticate it. Theoretically the judge can take care of authentication by judicial notice because the deposition is one of the formal documents in the case. But in actual practice, you don’t need to say anything other than to cite the court and the opposing counsel to the page and line where you are going to start.
On the other hand, if you would prefer to rub your opponent’s nose in what he said, you can do that, too. While there is no rule that says you must have a witness on the stand to use an admission from a deposition, there is no rule that says you can’t have one. You can even use an admission as a prior inconsistent statement—to attack the credibility of the party as a witness.
And because the witness is party—not just a witness—you are not required to confront him with his deposition at any time during the trial. Rule 613(b) of the Federal Rules of Evidence.
Timing is not a problem, either. You can use the deposition almost any time you like—so long as it is your turn to talk. You can read the admission (or have it read) at any time during your case in chief, or use it when it is relevant to the cross-examination of a witness during the other side’s case. Just remember that Rule 611(a) of the Federal Rules of Evidence says, “[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence. ”
When the witness is not a party but just a witness, the rules change. To the common law it was all very simple. A prior inconsistent statement was hearsay. It was made out of court and it was therefore inadmissible to prove its truth—unless it fell into some recognized exception to the hearsay rule.
And a deposition was not an exception to the hearsay rule.
So even though the statement was made under oath in a proceeding that was part of the case and was subject to cross- examination, it was an “out-of-court statement.” It could only be used to discredit the witness—not to prove the truth of what it said.
It was an interesting little absurdity. Suppose in the deposition the witness said the light was green. If he did not appear at trial, the deposition would be admissible to prove the light was green. But if the witness came to the trial and testified the light was red, the deposition would no longer be proof of green—it could only be used to attack the credibility of the witness when he said “red” on the stand.
That was fixed by Rule 801(d)(1)(A) of the Federal Rules of Evidence, which says a witness’s prior inconsistent statement is admissible for its truth if the witness is subject to cross-examination concerning the statement, it is inconsistent with his testimony, and it was made under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.
Next is confrontation. Ever since Queen Caroline’s Case, 2 Brod. & Bing 284, 313, 129 Eng. Rep. 976 (1820), you had to confront the witness with his prior inconsistent statement before you could prove that statement with “extrinsic” evidence—a writing, the testimony of another witness, or a deposition.
But the confrontation requirement was changed by the Federal Rules of Evidence. Under Rule 613(a), you do not have to confront the witness with his statement to cross-examine him about it. And under Rule 613(b) you can prove the prior inconsistent statement with extrinsic evidence so long as the witness is given some opportunity to explain or deny the statement, and the other side has a chance to examine him on it—for example on redirect examination.
With these serious changes in the rules, you would expect a big turnaround in how we use prior inconsistent statements. Sorry. Most lawyers still do it the same old way—just like what Judge Gunn told Regis McCormick to do—in a stiff, stylized, meaningless litany that is copied all over the United States.
It is silly. So long as the witness gets some chance to explain or deny the statement during the trial, the kind of confrontation is entirely up to you. And furthermore, the statement in the deposition that used to be admissible only to attack the credibility of the witness is now admissible for its truth.
Professor James W. Jeans from the University of Missouri–Kansas City has a good way to look at it. “Our mindset is all wrong,” says Jeans. “We should stop thinking about prior inconsistent statements and start thinking about subsequent inconsistent testimony.”
Jeans is right. In the red light–green light example, our approach should be that deposition proves the light was green—not just that the witness’s credibility is off because he said “red.”
Everybody has memory lapses.
So one of the good uses for a deposition is to gently massage the witness’s synapses to lure back a memory that has been hiding in some corner of the mind.
One problem is that some judges take the position that the witness must admit he cannot remember something before you can refresh his recollection. But the truth is, remembering incorrectly is one way to forget. And besides, now you can impeach your own witness under Rule 607 of the Federal Rules of Evi- dence. So if the judge thinks you are improperly refreshing your witness’s recollection, tell her you are impeaching the witness.
Of course it is improper to impeach one witness with another witness’s deposition. But that doesn’t mean you can’t use the other witness’s deposition to refresh this one’s recollection. You can use anything to refresh recollection. If it is all right to refresh Stein with a newspaper, a bottle of perfume, or by humming a tune, it is all right to use Fuller’s deposition. Just be ready for your opponent’s mistaken objection.
Guiding the witness falls in the no-man’s land between impeachment and refreshing recollection. With impeachment the point is to discredit. With refreshing recollection, the point is to bring it all back. But guiding is different. The point is neither to discredit nor to refresh. Like gently leading questions on cross-examination, its purpose is to keep the witness on track. Whether on direct examination or cross, its point is to prevent problems rather than fix them after they happen.
Be understanding as you give the witness a friendly reminder that he has already testified under oath. To the jury it sounds like sympathy for the witness for having to do it all twice, but to the witness the underlying message is, “I’ve got it all here in your deposition.”
Keep the deposition handy as you examine the witness. Use her words whenever possible. Then if she says, “I wouldn’t say the mistake was ‘devastating,’ ” you can reply in a friendly tone, “But ‘devastating’ was your word, wasn’t it? Here, take a look at your sworn statement. Page 127, counsel.”
Memorize the elements to past recollection recorded—because you never know when you are going to need it. You can pretty well anticipate when you will have to prove the contents of an ancient gravestone marker or lay the foundation for a dying declaration. And you should keep a checklist for the elements of business records in your personal trial notebook. But you should memorize past recollection recorded. Here are the elements:
One more point. Can the deposition come from another trial? Of course, as long as it is the witness’s deposition. This is past recollection recorded—not former testimony. It doesn’t matter where the deposition came from, or whether the opponent had a chance to cross-examine the witness at the time—so long as all of the elements are satisfied. But once again, be ready to explain all that to the judge.
One of our worst habits as trial lawyers is using the words recall and remember. Certainly a witness has to remember something before he can testify to it. But you do not have to establish that recollection as if it were some formal predicate that had to be articulated before the witness could speak.
The problem is, using recall and remember raises the possibility that the witness might say he does not remember—something that probably did not occur to him until you suggested it.
Examining witnesses is hard enough as it is without inadvertently suggesting they have a lapse of memory. Enough of them do that on their own (or at the improper suggestion of a lawyer who has no sense of ethics).
All right, you say, so what? What does that have to do with depositions?
Just this. Depositions can be used to cure those “convenient memories” that seem to forget damaging information. It starts with Rule 804(a)(3) of the Federal Rules of Evidence. A witness is “unavailable” if he “testifies to a lack of memory of the subject matter of the declarant’s statement.”
And when the witness is “unavailable”—even though he is sitting right there on the witness stand—you can use his deposition as Former Testimony under Rule 803(b)(1) of the Federal Rules of Evidence.
The witness doesn’t have to be brain dead or claim he can’t remember anything before last Thursday before you can use the deposition. All he has to do is claim he can’t remember the part you want, and that opens the door.
Every cross-examination involves some witness training. And the time to start training the witness is at the beginning of the examination. It is too late to try to regain control in the middle of one of the witness’s argumentative harangues that you have just let go up until now.
The same idea applies to using the deposition. Every time the witness deviates from his deposition, you go through the process of showing him what he said and reading it into the record.
And now comes the time when you decide to take a chance. You want to establish the color of the witness’s car. You know he has a blue car, he knows he has a blue car. The problem is there is nothing about the color of his car in the deposition. But because you have fed him enough dog food after ringing the bell each time, you decide to ring the bell again. You pick up the deposition and say,
Q: Your car is blue, isn’t it?
What do you do if he lies and says no?
Put down the deposition in disgust and go on to your next point. Remember, you’ve been training the jury, too.
Experts can rely on all sorts of things in forming their opinions. They can consider informal reports, summaries of events, statistical abstracts—rank hearsay of almost any kind so long as they say it is “reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”
Rule 703 of the Federal Rules of Evidence.
That means depositions qualify, too.
This piece is an excerpt from McElhaney's Trial Notebook (4th ed. 2006).