A portion of trial that rarely gets included in movies is the part where lawyers read aloud portions of the transcripts of depositions. This is because this is often the most boring part of trials. Senior litigators often pass this aspect of the trial to junior associates and relax while it takes place before more live witnesses or closing statements. But deposition testimony can still play an important role in commercial disputes.
Why should you continue to read this post about deposition designations?
You are on the hunt for the internet’s most exciting blog post
You believe that live depositions are too thrilling to attend
You’re a fan of deposition transcripts and want to watch them performed
Depositions Are Used at Trial to Present the Testimony of Absent Witnesses
Before trial, lawyers take depositions of witnesses. The major reasons to depose witnesses include learning relevant information about the case and to confirm what the witness will say at trial.
But some witnesses who are deposed do not actually testify at trial for a variety of reasons. Some witnesses live far away from the courthouse and, even though the court may compel them to participate in a deposition near where they live, the court may not compel them to travel to the trial. Other events may prevent their testimony at trial, such as an illness or death.
To allow the testimony of absent witnesses, courts allow litigants to submit transcripts of the testimony witnesses offered at their depositions as if it were testimony presented at the trial itself. Courts consider this testimony as if the witness provided it live at trial because witnesses swear to tell the truth at the start of their depositions, just as they do when they testify in court. And violating that oath is technically a crime, just as it would be for lying in court.
Before Trial, Lawyers Identify the Deposition Testimony They Want to Present
Before trials, judges ask litigants to identify what deposition testimony they intend to present. Rules of Civil Procedure, such as Federal Rule 26(a)(3)(A)(ii) require this disclosure.
Litigants do not just identify the witnesses whose testimony they want to present. They identify the specific transcript pages and lines of testimony. If a deposition transcript is 150 pages long, it is common for lawyers to only submit around 5 pages, especially because large portions of the deposition may not concern subjects for which the deponent provides important testimony or because other portions of the transcript do not provide helpful material.
Selecting the five pages is often a challenging task because depositions, like normal conversations, go off topic. So citing testimony about a subject may include a few lines on one page and then a few lines on another page when the conversation returns to that subject.
After a litigant submits the transcript citations for the deposition testimony they want to present (called, “deposition designations”), their adversary has the opportunity to submit objections, just as if the lawyer were objecting to questions and answers said aloud in court. And the adversary may submit additional citations that rebut the original citations (these are called “counter-designations”). Then the original litigant may submit objections to the counter-designations.
Depositions are Often Performed by Lawyers and Paralegals
Parties exchange their deposition designations before trial and then usually do not consider them much as the trial begins and people focus on the opening statements and live witnesses.
Then, when live testimony for one side has concluded, or at some other convenient time, the parties present their deposition testimony. At some trials, the judge may just ask the parties to submit the transcripts to the court so that the judge may read them. In other cases, where the deposition was videotaped, the lawyers may play video of the deposition.
But often judges require that two people read the transcript excerpts aloud, with one person reading the questions and another acting as the witness and reading her answers aloud. This can be awkward because the transcript often reflects the witness’s extemporaneous speech, which is normally not in complete sentences or perfectly coherent. Even though a deposition transcript already exists, a court reporter usually transcribes the performance of the deposition into the transcript of the trial.
The judge or jury watches the performance, as they would watch a live witness. But it is often difficult to pay close attention to non-theatrical actors reading aloud from the text of a deposition transcript from a commercial litigation. There is usually no “exciting part” and the performances are usually stilted. This is why parties try not to rely on deposition designations or cite lengthy excerpts.
Even though deposition testimony may be difficult to enjoy, it can be useful in the legal arguments after a trial when each side needs to identify evidence proffered during the trial that supports its case. In those arguments, deposition testimony can be cited just like live testimony and exhibits.