Using Depositions in Trial
Francis J. Carney1
Many a trial witness will react to a sharply-done deposition impeachment like a hunting
dog to a new training collar. Witnesses are terrified of being caught in inconsistencies and, once
caught, strive mightily to avoid it again.2 The greener they are, the worse that terror is. Just
counsel’s reaching for the transcript prompts some to concede things they wouldn’t otherwise
concede: “you know, if it’s in there, I must have said it.” Impeachment on deposition is a
technique all trial lawyers should understand, but use with discretion. Used poorly, without
applying proper technique, it is embarrassing. Used without discretion, to harass a witness on
every minor inconsistency, it destroys your own credibility. Used correctly, with discretion, it’s a
wonderful tool for your trial arsenal.
THE TECHNIQUE
The steps to deposition impeachment are the same as for any other type of impeachment
on a prior inconsistent statement: commit the witness to the in-court testimony, lay the necessary
foundation, and confront the witness with the prior inconsistency.
Step One: Freeze the “Present” Testimony
It’s ineffective to start off with “what you told the other counsel just now is not what you
1
Revised and updated from Practice Pointers: Use of Depositions in Trial, UTAH TRIAL J.
(Spring 2005).
2
Of course, the practiced witness learns quickly to call the attorney’s bluff, and is not so easily
restrained.
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said in your deposition, is it?”3 The jury has heard a lot of testimony, and some will wonder what,
exactly, the earlier testimony was. And this approach takes away all the drama of the
confrontation.
Suppose you represent Plaintiff Fermi in an action against Defendant Bohr for injuries in
a car wreck. Eyewitness Einstein has testified on examination by defense counsel that Fermi was
speeding just before the crash, but in his deposition he said nothing of the sort. You could start
your cross examination like this:
Q:
“Didn’t you say in your deposition that you didn’t get a good look at Fermi’s car,
and couldn’t tell how fast he was going?”
A:
“I might have, but the way I remember it right now is that he was speeding. It’s
all relative, you know.”
Q:
“Well, let’s just look at the transcript here . . .” (etc.)
The point will be made-- in a fashion-- but all dramatic effect is lost. So try to make
something bigger of the inconsistency by first nailing down Einstein on his trial testimony:
Q:
“Didn’t you testify on direct examination that Fermi’s car was speeding as he
approached the intersection?”
A:
“Yes.”
Q:
“You’re not very clear about that, are you?”
A:
“No, I think I am clear, as clear as a theoretical physicist can be.”
Q:
“You got a good look at Fermi’s car, did you?”
3
It should also prompt an objection that will probably be sustained: “Objection as to form. If
counsel wants to attempt an impeachment on deposition, he needs to refer the witness to the page and
line of the prior testimony.”
Carney: Depositions at Trial- 2
A:
“Yeah. I could see everything. I was right there. I remember it clearly.”4
OK, now he is committed to his in-court trial testimony. Go to Step Two.
When you’re questioning a witness who begins to wander from prior deposition
testimony, frame your questions using the witness’s exact words used in the deposition, or
invariably he will wiggle out. Suppose Eyewitness Einstein said in his deposition that Defendant
Bohr also had seemed to be “in a great hurry” to get to the lab, that his car window was down,
and he was loudly singing a ditty. If you want to hold Einstein to that testimony, you must use the
same language, word for word, as the witness used in the deposition:
Q:
Wasn’t Bohr speeding also?
A.
No, I don’t think so.
Q:
Didn’t you say in your deposition that Bohr seemed to be in a great hurry?
A.
Sure, but “a great hurry” for Niels Bohr is 30 mph. He’s the slowest driver I’ve
ever known. They wouldn’t even let him on the roads back in Denmark. You Americans give
anyone a license. But he wasn’t speeding over the limit.
So your trial question should have been “didn’t Bohr seem to be in a great hurry?,” not
“was Bohr speeding?” Sure, sometimes the wiggling doesn’t help the witness at all, but why not
set it up correctly in the first place and never give him the opportunity to waffle?5
Step Two: Lay the Foundation for the Deposition
A jury doesn’t know what a deposition is. The standard practice is to lay a foundation for
4
And if the witness admits that he’s not so sure after all, so much the better. But otherwise he’s
taken the hook, line, and sinker.
5
This hypothetical also demonstrates sloppy deposition technique in failing to tie down Einstein
on what he meant by “in a great hurry.”
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the impeachment by drawing the jury’s attention to the circumstances and solemnity of the
deposition. This, I hope you would gather, is done only the first time around and not for later
deposition impeachments:
Q:
Professor Einstein, do you recall coming to my office in February 2003 for the
purpose of giving a deposition in this case?
A:
Ja.
Q:
And your were sworn under oath to tell the truth by a court reporter, just like you
have been sworn under oath today?
A:
Yes.
Q:
And you understood that the oath you took at the time of your deposition required
you to tell the truth, the whole truth, and nothing but the truth?
A:
I presume so.
Q:
And you did tell the truth at that time?
A:
Of course.
Q:
And I asked you questions, and you gave answers?
A:
I tried to.
Q:
And after the deposition you were given the opportunity to read it, check for any
errors in transcription?
A:
Yes.
Q:
And then you signed it under oath here on page 134 stating that it was true and
correct except as to the changes you made?
A:
Yes.
Q:
Now, Professor Einstein, with the court’s permission, let me hand you the original
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of your deposition transcript, and ask you to tear open the sealed envelope.6
A:
Ja.
Q:
Is that your signature there on page 134 stating that this was your testimony and
that it is correct?
A:
Yes, that is so.
Q:
Now turn with me please to page 25, line 7.
Some find this whole “windup” process to be an ineffective waste of time. Judge Herb
Stern, a highly regarded writer and teacher of trial advocacy, says that we’re better off just
ignoring the usual procedure:
We do these windups for ourselves, not for the jurors. No matter how long you go on with
your preliminary windup, you are not likely to give to the jurors enough information
about depositions to make any sense to them-- even if jurors really cared about such
matters. But they do not. The intricacies of the process of deposing are not likely to hold
the jurors’ attention. And there is no reason for them to be concerned about such matters.
What they do care about is that the witness told two different stories under oath. And they
are more likely to care about that if you can deliver that payload directly, while you still
have their attention and before the witness has drawn the sting by offering excuses.7
He suggests a head-on attack: “Professor Einstein, isn’t it true that you just swore to this
jury that Fermi was speeding, but that in your deposition, page 25, line 9, you swore: Q- Could
you see how fast he was going? A- I couldn’t. I wasn’t really paying that close attention. I had
other things on my mind” (Done while placing the transcript on the podium before the witness.)
At least the first time a deposition is used for impeachment in a trial, I don’t agree that
6
The quaint ritual of “publishing” depositions, in which the original transcript is handed to the
judge, the attorney moves to “publish” the transcript, the judge inspects and opens the sealed envelope,
then hands it to the clerk to hand to the witness, isn’t necessary anymore. Utah Rule of Civil Procedure
32(d); Salt Lake City v. James Constructors, Inc., 761 P.2d 42 (Utah Ct. App. 1988).
7
H. J. Stern, 3 TRYING CASES TO WIN : CROSS EXAMINATION , p. 84 (Wiley Law
Publications, 1993).
Carney: Depositions at Trial- 5
you lose all that much from laying some foundation explaining a deposition and emphasizing the
solemnity of the process. I also think it’s better to more starkly commit the witness to his in-court
testimony by using a separate question before confronting him with the deposition testimony. But
Judge Stern is a master of this art, and his approach certainly is reasonable once the jury has
gotten the idea of what a deposition is about.
Step Three: Read the Questions and Answers Aloud
It’s sloppy to let the witness read the questions and the answers aloud out of the
deposition transcript. All control over emphasis in the words is surrendered. The better approach
is to ask the witness to read the question and answer to himself (which, by the way, builds
suspense for the waiting jury) and then you read them aloud for all to hear:
Q:
Professor Einstein, turning to page 25 of your deposition, please read to yourself
the question starting on line 7, all the way through the answer ending on line 11, and let me
know when you have done so.”
(A pregnant pause.)
A:
OK, I have read it.
Q:
The question was: “Could you see how fast he was going?;”and the answer was
“I couldn’t. I wasn’t really paying that close attention. I had other things on my mind.”Did I
read that correctly?
A:
Yes, you certainly did.
“Did I read that correctly?” is narrower and better than “isn’t that what you said?” or
“wasn’t that your earlier testimony under oath?” It subtly invites a simple answer, not an
explanation as do the other follow-up questions.
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Step Four: Leave It
The urge to rub it in is nearly irresistible. Until you learn when you can get away with it,
fight the temptation and move along, as you are often going to lose the exchange that follows. So
ignore your primal instinct to follow with something like:
•”Were you lying then or are you lying now?”
•“Well, the jury can’t believe both of those statements to be true, can they?”
•“Do you think you want to change your testimony now?”
•“Your testimony today in court was false, wasn’t it?”
Most of the time, but not always, such a question won’t help the examiner: “No, I was
mistaken in my deposition testimony. I went back and read it over and see that I was confused by
the questioning in a language foreign to me. I’m sorry. I am not lying. I am absolutely certain
now that Fermi was speeding.”
It’s safer to hold the “rubbing in” for closing argument. Otherwise, it will invite an
explanation, which may or may not be persuasive, but will be less persuasive and seem more
contrived if it has to be brought out on re-examination by opposing counsel. If it’s an important
contradiction, in closing blow up MUJI 2d 122 (which talks about the effect of witness
inconsistencies), remind the jury of the in-court testimony, then show a blowup of the
contradictory deposition testimony. Use closing to argue the issues of credibility when the
witness isn’t there to glibly explain it away. Of course, once you develop a practiced feel for
witnesses and jurors, you can estimate the risk-benefit ratio of breaking this “rule,” and
sometimes take your chances.
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Step Five: Anticipate the Explanation
While it’s true that you do not want to give the witness a free chance to explain away an
inconsistency, I take issue with those who say a lawyer should never allow a witness to explain.
We want to discourage self-serving explanations, and we do so not by shrilly insisting on yes-no
answers, but by learning to frame short, simple questions: key questions posed in a form so
simple that only a yes-no answer is necessary. Even so, the witness will often attempt to
volunteer an explanation.
Do you cut them off? Traditionally, we have been told to suppress any attempt at
explanation. Never allow the witness to explain, we hear as dogma. When faced with a “may I
explain?,” we are taught to say, “If you have any explaining to do, your lawyer will bring it out
on redirect,” or some other such lawyerly expression of the word “no.”8 I think this is a mistake,
and a big one. Witness control matters, but far less so than your own credibility. If you want to
persuade people, they must believe you– and they won’t believe you if you’re full of controlling
lawyer tricks that they’ve seen on television. Hyper-control of a witness by refusing to allow any
explanations and insisting on yes-no answers leaves the impression of an advocate afraid of the
truth, and trying to cram answers into a reluctant witness’s mouth. It doesn’t persuade the jury
that you’re a truth-giver; indeed, it reinforces their underlying bias against lawyers and confirms
that you are one of “them.”
8
This sort of technique goes so far as the “deal,” where the cross-examiner, at the start, gets the
witness to agree to answer all questions “yes” or “no” if they can be answered in that manner; if not, the
lawyer will rephrase them.
Carney: Depositions at Trial- 8
Many times you don’t care what the explanation’s going to be, and you harm your case
more by quashing the explanation than by letting it go. “May I explain? Well, I have thought
about it more since then and now I am sure that Bohr was speeding.” Is that really going to
convince anyone? And don’t bother bludgeoning the witness over it– “Is your memory now
better than it was six months after the car wreck?”– the jury gets the point without ham-handed
assistance of counsel. And many judges will step in and play the heavy for you for witnesses that
insist on volunteering; if that’s the case, great for you.
Sometimes you do care about the explanation, and sense it’s going to hurt you. What
then? Suppose the truth is the witness was wrong in the original testimony, and has a good
explanation for why. Do you think you’ll avoid hearing it by throwing a hissy fit over the
witness’s request to explain? What will actually happen is that the judge will silence the witness
at your request, you will look like a nasty, over-controlling jerk who’s keeping something from
the jury, and opposing counsel’s first invitation on redirect is going to be “I’d like you to tell the
jury what it is that other counsel wouldn’t let you say.” If the explanation’s a good one (they
rarely are), and you can anticipate it, the wiser course would have been not impeach at all. If the
explanation is likely to be lame, don’t encourage it, but don’t hide from it either if, despite your
questioning technique, it still happens.9
9
This “soft” approach doesn’t necessary apply to professional witnesses– experts, cops, etc.–
who know the rules and know when to take liberties. You’ll develop a sense for when a jury has “given
you permission” to take a firmer hand with these sorts.
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THE BACKGROUND
That is the technique for impeachment. But I have a few more thoughts on the subject of
use of depositions in trial that I want to share with you.
1.
Save Impeachment for Things That Matter
A deposition used at trial for impeachment is more often a bust than a success. Once the
new attorney learns how to do it, she invariably needs to show off a newly-acquired skill, and
uses it whenever possible. Too often, a transcript is used to “impeach” the witness on some
minor and unimportant point, or as to some slight difference between the trial testimony and the
words expressed in the deposition. “Professor Einstein, you swore to this jury that Niels Bohr
was driving down the road singing a song about mesons. Yet you swore in you deposition
testimony that he was singing a song about muons. Which one do you expect this jury to
believe?” After all the posturing and windup, the jury is left wondering “what was that all
about?” or, more likely, “what a dink that lawyer is.”
People mostly believe that lawyers have a deep bag of tricks in which to entrap the
average person and see depositions as one of those tricks. A pettifogging, harassing
impeachment on minor inconsistencies confirms this bias and generates witness sympathy.
Think of annoying seven-year-old Jared, behind you in the line at the grocery store, who wants to
pick up that candy, this magazine. At first, you’re happy when the mom takes control. But
suppose mom orders Jared to “Stand still and keep your hands in your pockets! And don’t touch
your sister. Don’t you dare look at that magazine! Stop picking your nose! Keep your hands out
of your mouth! That’s dirty!” Now whose side are you on?
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Understand that trial is not an evidence examination nor a seminar designed to show off
your skills. It’s a test of credibility for you and your client–– and you lose that credibility quickly
by making every conceivable objection, by refusing to admit the weak parts of your case, or by
haggling over inconsequential inconsistencies.10 Save your skill at impeachment for things that
matter.
2.
Depositions Are Not Just Used to Impeach
Rule 32(a) provides that the deposition of a party and an unavailable witness may be
used “for any purpose;” that is, not just for beating the witness over the head in impeachment but
also as substantive evidence. The particulars of this rule and of Utah Rule of Evidence 804
should be consulted. For example, you can read the deposition of a party into evidence as
substantive evidence. You can make your case-in-chief based on that deposition testimony alone,
just as if the witness were in court testifying, which means you still have to worry about
foundation, hearsay, and so on for the questions in the deposition.
But take heed. Reading a deposition in court is extraordinarily boring, and extended
video depositions only slightly less so. Witnesses are not professional actors. When jurors hear
“video,” many expect a tightly-edited, well-acted, well-scripted presentation, like they see every
night on television. What they get is endless and painful droning. So use transcripts and videos in
court with care and only when absolutely necessary.
10
Unthinking objections can even make your opponent’s evidence stronger. For example, “Didn’t
you give a sworn deposition in this case last year, and didn’t you testify that Bohr was going too fast?”
might prompt an objection, as it is compound. Yet it would be silly to object. The judge will sustain the
objection, the questioner will rephrase the question into two (or more), the point will be made more
clearly to the jury, and you have not kept the evidence out, only gilded it.
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Video depositions can be extraordinarily helpful in short excerpts. Sometimes witnesses
are substantially “cleaned up” for trial, in appearance, dress, or temperament. Use a short
impeaching excerpt–– preferably through digital means–– to highlight the makeover for trial. It’s
great fun to show parts of a video deposition of an exceptionally hostile or sloppy party
opponent in your case in chief, especially when the witness is overly-groomed and practiced at
trial. You can also subtly demonstrate the nastiness or contentiousness of defense counsel when
no judge was present. Just be judicious and sparing in using video.
3.
How Deposition Objections Are Handled at Trial
With few exceptions, Rule 30(c) does not require that objections to deposition questions
be made at the time of deposition. They are “reserved for trial.” In practice, this means that while
the deposition is being read in court, the opponent is supposed to rise and say“At this point in the
deposition we object to the question” or the like. The judge then rules. In the real world, most
deposition objections just get “waived” and not even read at trial–– an indication of how
unimportant they were. Another, less common, approach is to raise the objections to the proposed
deposition testimony before trial, as by a motion in limine. This certainly should be considered
for any anticipated deposition testimony of importance and of questionable admissibility.
4.
Learn the Rule of Completeness
Rule 32(a)(4) provides that if only part of a deposition transcript is read into evidence by
a party, the adverse party may require the introduction of any part “which ought in fairness to be
considered with the part introduced.” To similar effect is Utah Rules of Evidence 106. This is a
marvelous hammer on opponents who are too slippery by half. You know, the ones who try to
take a deposition statement out of context or only in partial context. The rule says you don’t have
Carney: Depositions at Trial- 12
to wait for your own examination to correct the wrong impression; you can force your opponent
to read it, or let you read the rest, right then and there. This is priceless if an opponent is foolish
enough to be tricky with what was selected to be read to the jury.
5.
Consider Asking the Judge to Explain Depositions
The jury won’t initially have a clue what a “deposition” is, and may understand only a
little bit more about it if you explain it to them as part of your windup, so some judges routinely
explain to the jurors what a deposition is the first time they are faced with one at trial. Others will
do so if asked: “Your honor, at this time we suggest that a brief explanation from the court on
what a deposition is might be helpful to the jury.” I’ve never been refused such an explanation.
6.
The Jury Does Not Get The Deposition Transcripts
Jurors often ask for deposition transcripts during deliberations. But because of the fear
that they might tend to overemphasize the importance of testimony by deposition to the exclusion
of testimony heard in court, deposition transcripts do not go with the jurors for their
deliberations.11
CLOSING THOUGHTS
You can develop a feel for knowing how far you can go with any given witness. It takes
but a few years to learn the techniques that keep you from fumbling around in the courtroom, but
developing that feel for witnesses usually takes years to acquire. Some happy souls instinctively
know how to read people, and how to get the most out of any witness. Some never learn, and
never care to learn. The rest of us spend years at this study, learning to listen ever more
11
Advisory Committee note to Rule 47(m); Shoreline Devel v. Utah County, 835 P.2d 207 (Utah
Ct. App. 1992); State v. Solomon, 87 P. 2d 807 (1939). This isn’t meant to imply you can’t show parts of
the transcript to the jury by blowup in closing argument; that’s a very useful exercise.
Carney: Depositions at Trial- 13
carefully, and by small steps, haltingly progress.
I can summarize the levels of learning deposition impeachment like this:
Beginner
Novice
•Does not commit witness to
in-court statement first
•Tightly follows the four
steps to impeachment
•Tries to impeach on nonimpeaching statements
•Has page and line of prior
statement right at hand
•Fumbles to find the right
spot in the transcript
•Unable to recognize
inconsistencies that aid the
case, and harps on them
anyway
•Gives witness a chance to
explain away inconsistency
•Fumbles about the
courtroom
•Impeaches at every chance
and haggles over minor
inconsistencies
•Never allows a witness a
chance to explain
Pro
•Usually follows the four
steps to impeachment– yet
understands when not to do
so
•Saves deposition for
inconsistencies that really
matter
•Knows when it’s OK to
allow witness to explain
•Strives to impress with
technical knowledge of the
facts and the law
•Understands that a lawyer’s
credibility is a key element of
persuasion, and knows how
pettifogging and unfairness
destroy it
•Assumes harsh, aggressive
tone with all witnesses called
by opponents
•Sprezzatura
Sprezzatura is not a coffee drink, but an antique Italian word that means the art of
concealing art, or of making the difficult seem effortless.12 It suggests spontaneity and an easy,
unconscious display of virtuosity. It’s characteristic of a great trial lawyer, indeed of any
accomplished athlete, artist, or actor. Those of us old enough to remember see in our mind’s eye
Ted Williams’ exquisite “natural” swing— effortless, powerful, beautiful: a “natural” ability,
yes, but one acquired from years of hard study and an uncommon devotion to his game.
12
From Baldassare Castiglione’s 1528 guide, IL LIBRO DEL CORTEGIANO (The Book of the
Courtier). Castiglione was an arbiter of aristocratic manners during the Italian Renaissance. The
opposite of sprezzatura is spirtzatura, the art of sweating for art, or making it seem really difficult.
Carney: Depositions at Trial- 14
Some never make the effort to get past the “beginner” stage, although it’s relatively easy
to do so. Far more difficult is the step up from “novice” to “pro,” as it involves a measure of
experience, common sense, feel for the witness, sensitivity to the jury, and other things. Many
experienced lawyers never reach this stage. Learning and self-critique seem to stop for some
people once the “rules” are learned.
I wish I could tell you that it’s as easy as “learn the rules and you’ll be there.” It’s more
like “learn the rules, and after you know them instinctively, but not before, then learn when to
ignore them.” Learning how to say the right things and not to fumble in the courtroom can be
learned in the first five years of your practice, but sprezzatura is a life-long labor for the trial
lawyer.
FJC
October 2012
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