When taking or defending a deposition, always keep in mind that you’re making a record for the jury. Sometime later, perhaps years after the deposition took place, a jury may hear parts of the deposition and you want everything to be there and be clear.
There are several ways to use deposition testimony at trial: It can be used to impeach, to refresh recollection, as an admission by a party, and—for unavailable witnesses—in lieu of live testimony.
Many attorneys get lulled by the informal nature of a deposition and neglect to make a jury record. This turns out to be big mistake when they want to use part of the deposition at trial.
Experienced attorneys know that you should keep your eye on the jury record during deposition and avoid the following traps that you’ll regret if you want to use the deposition at trial:
Using lawyer language or legalese. Always use plain English when taking or defending a deposition. For example, instead of saying the party “exited the motor vehicle,” say the party “got out of a car.”
Trading insults with opposing counsel or the witness. If your questions are impolite or dishonest, the jurors will see you in a bad light and you may lose their attention from the point you’re trying to make.
Referring to documents by their deposition exhibit number. Once an exhibit has been identified, refer to it by short-hand description (e.g., “the letter of November 18th”). This will make testimony much more comprehensible when read to the jury.
Letting a witness draw pictures in the air. Making a record for the jury means that everything that happened in the deposition is reflected in the testimony. If you need the witness to show something, have him or her draw a picture or make a diagram that will be part of the record. And if, for example, a witness indicates that the screwdriver was “about this long,” get in words how many inches “this long” is.
Did you know that CEB’s Effective Direct and Cross-Examination dedicates an entire chapter to depositions? Check out chapter 9 and then review the rest of the book before you head into trial.
Other CEBblog™ posts you may find useful:
- Avoid Using Trial Objections When Defending a Deposition
- 5 Steps to Handling Nonresponsive Deposition Answers
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