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This article was published in the Fall 2017 edition of the Oregon State Bar's Litigation Journal.

Early in our practice, we master the use of the deposition transcript to impeach the testimony of the witnesses we are examining at trial by reading their prior inconsistent statements at deposition. The mechanics of this use of the deposition transcript are regularly covered in deposition and evidence seminars and treatises.

All of us learn, over time, that there are other uses of the deposition transcript at trial. Three effective ones are (1) as a source for admissions, (2) to refresh recollection, and (3) to introduce prior testimony.

1. Source for Admissions

Assume that the plaintiff, a male employee, has had a sexual relationship with his female manager, that he has boasted about the relationship to other employees, and that the manager has fired him for being unwilling to continue the relationship and for being indiscreet. The plaintiff has filed a wrongful-termination action naming the employer and the manager as defendants.

The manager has two supervisors, Supervisors A and B. The manager has admitted to Supervisor A that the reason for terminating the employee was his indiscretion. Although the examiner does not know it, the manager has not made a similar admission to Supervisor B.

At trial, the examination of
Supervisor B proceeds as follows:

By Plaintiff’s Counsel:

Q: The reason Ms. Manager fired Mr. Employee was simply because he was not discreet about their sexual relationship, isn’t it?

A: That may have been a consideration. After all, there were a lot of rumors that such a relationship existed.

Defendant’s Counsel:

Your Honor, may I ask some questions in aid of objection?

The Court:

You may.

Defendant’s Counsel:

Q: Mr. Supervisor B, you don’t know whether a sexual relationship existed or not, do you?

A: No, I don’t.

Q: You don’t have any personal knowledge as to why Mr. Employee was fired, do you?

A: No, I don’t.

Defendant’s Counsel:

Objection. Move to strike the answer as speculative.

Plaintiff’s Counsel:

May I offer an exhibit, Your Honor?

Defendant’s Counsel:

May we approach, Your Honor?

Plaintiff’s Counsel (at sidebar):

Your Honor, I offer Exhibit 25, which is an excerpt from the deposition of Supervisor A, who was at all relevant times one of Ms. Manager’s supervisors. At page 68, lines 4-28, Supervisor A says, "I know Ms. Manager well, and I believe she had to fire Mr. Employee because he failed to keep their sexual relationship discreet, and that threatened to hurt her chances for further promotion." I am willing to withdraw my question to Supervisor B and instead publish page 68, lines 4-28, to the jury. Supervisor A is a managing agent for defendant employer, and his statement in deposition is admissible under Federal Rule of Evidence 801(d)(2)(A).

Defendant’s Counsel:

Your Honor, Supervisor A’s statement is an opinion and should not be admissible.

The Court:

Admissions are not governed by the rules prohibiting opinions. The statement may be read to the jury.

Assuming that Supervisor A is not available to be called as a witness at the time of trial, reading the admission at this point during the examination of Supervisor B may be an effective method of reemphasizing a point to the jury. If you plan to call Supervisor A and he will admit that the statement was made without impeachment by the deposition transcript, you may be able to make the point twice. If Supervisor A will not admit the statement without being impeached with the deposition transcript, the judge is likely to allow the transcript to be read a second time, even if the defendant’s counsel is prudent and quick enough to interject an objection based on cumulative evidence.

If you don’t like the way the deposition transcript reads, but you are confident that you can get the admission at trial from Supervisor A, then before trial you may want to submit a request for admission that states the admission clearly (and, if admitted, the request can be read to the jury; if denied, a motion for attorney fees can be submitted at trial).

2. Refreshing Recollection

Often, a friendly or even an adverse witness has simply forgotten facts that were testified to during an earlier deposition. When the witness’s recollection needs to be refreshed, it can be accomplished by simply handing the deposition transcript to the witness.

Q: Ms. Manager, when was the first time you had sexual relations with Mr. Employee?

A: I don’t remember.

Q: Let me show you page 12, lines 9-15, of your deposition transcript. Would you please read that to yourself?

A: Certainly.

Q: Have you finished reading that section of your deposition?

A: Yes.

Q: Based on your review of the deposition transcript, does that refresh your recollection as to when you first had sexual relations with Mr. Employee?

A: Yes, it was Halloween,
October 31, 2015.

3. Use as Prior Testimony

Assume that after attempting to refresh defendant Ms. Manager’s recollection with the use of her deposition, the attempt fails.

Plaintiff’s Counsel:

Your Honor, I would like to offer Exhibit 20, which is a copy of page 12, lines 9-15, of the deposition of defendant Ms. Manager, and either publish it to the jury or ask the court’s permission to read it to the jury.

Defendant’s Counsel:

Objection; hearsay.

Plaintiff’s Counsel:

Your Honor, defendant Ms. Manager has testified to lack of memory. Ms. Manager is therefore unavailable within the meaning of Federal Rule of Evidence 804(a)(3). This portion of the deposition qualifies as former testimony under Federal Rule of Evidence 804(b)(1) and is therefore an exception to the hearsay rule.

The Court:

The exhibit will be received, and you may publish it by reading the questions asked and the answers given at the time of the deposition.

Although in the scenarios above counsel attempted to refresh the witness’s recollection before offering the deposition transcript into evidence, this is not necessary. The deposition could have also been offered under the recorded-recollection exception to the hearsay rule (Fed R Evid 803(5)). Former testimony is perhaps a preferable approach, however, because recorded recollection may only be read to the jury, whereas former testimony may be received as an exhibit.

The tools of former testimony, recorded recollection, refreshing recollection, and admissions offer a number of variations to get exceptions to the hearsay rule into evidence. Such constructs can be "overused" but a good lawyer knows them and how to use them when they are warranted. If you have a judge, who might be a bit weak on these evidentiary rules, prepare a slip memorandum on each point and offer to submit the slip memorandum when the issue arises such as when you approach the bench.

These rules and familiarity with them gives you the opportunity to "control the courtroom" in view of the jury and the judge when it is worthwhile doing so. As is always the case, your judgment will tell you when it is worthwhile to do so and when you will appear to be a "showoff "or "over-lawyering." Ultimately there are defining moments in cases, which make a difference between a 9 to 3 jury verdict or a 6 to 6 jury split. Be familiar with the tools of former testimony, recorded recollection, refreshing recollection, and admissions so you can use deposition transcripts for such moments.

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