Law and the theatre: reading a deposition into evidence

Consider the court reading equally theater: "activity considered in terms of its dramatic quality". This article contains twelve theatrical tips in checklist form. These are a dozen ideas to utilize in transforming a deadening 60 minutes of someone reading into an interesting function of the trial.

Unfortunately there are times when you lot do not have a live witness for a disquisitional portion of your case, and yous only take a written transcript of his/her degradation. In that instance, you are left with the necessity of reading large portions of a deposition to the jury. If that happens to you, this article has the bones legal procedure you need to follow, plus the theatre to brand information technology interesting to the jury (and judge).

The basic legal procedure:

  • file original deposition,
  • enquire the judge for permission,
  • explain whatsoever failure to designate,
  • read the degradation aloud into the record.

You cannot read a deposition into testify unless a deposition original (or a re-create that has been signed and certified by the court reporter) is filed with the court before it is read into evidence. Many jurisdictions today provide that the original deposition cannot be filed in courtroom until information technology is to exist used in court, so it is upwards to yous – the chaser – to get it filed in the courtroom file. Never forget: you tin can only read into evidence a deposition if it is in the court'south file, not still kept in the office of the courtroom reporter or the chaser noticing the deposition. At that place are instances when trial judges take refused the reading of a deposition into evidence because a certified copy was not on file with the court, and so see that the original deposition, or other court reporter certified, copy is on file with the court.

The basic procedure starts past announcing to the judge that you want to read all or a portion of a deposition into evidence and securing the judge'southward permission to do so. Even though every bit a matter of right yous tin can read into the record the deposition of the adverse party, the trial judge controls when y'all can do it, because the judge controls the society of presentation of evidence. Gauge's guard their prerogatives; it's wise to keep the judge happy because you empathise his/her authority.

Often judges will include in a pre-trial lodge that you must designate the degradation and parts of them you desire to read into evidence. If so, and you lot oasis't included the designated the degradation earlier trial, be set to testify to the gauge — in exquisite particular — a reason why your defect should be excused. If for example, your reason is the expiry or disabling injury of the witness, don't depend on it that the gauge will accept your word for it; be ready with a witness to say the absent-minded witness is dead or physically unable to attended, or a certified re-create of a death certificate or hospital admission. If your reason is sudden unavailability of the witness, be ready with a sheriff'southward return of "not found" or some other evidence; your own recitation of the witness not coming to trial later on you asked for him/her to practice so is non going to be sufficient.

Fed.R.Civ.P., Rule 32(a)(4) and like state rules, mandate to use a deposition other than that of the adverse party as testify at the trial, the court must "find" a specific reason to permit it. "Find" ways the estimate needs show presented to him/her.

It is not unusual for a the trial approximate to ignore your ain recitation of a witness not coming to trial fifty-fifty though they "promised" you they would. Therefore, event a subpoena for every witness. I don't care if it is your own customer's spouse, or even your blood brother. Even a spouse or a brother tin have a traffic blow on the way to the courthouse or call back it won't hurt if they end to selection upwardly their child after schoolhouse. Always amendment every ane of your witnesses, and secure a procedure server'southward render of service or the witness'south signed receipt/access of service to prove the trial judge if your witness does not show up at trial.

After you have received the judge's permission, at the appropriate point in time, stand up and say to the jury that you are going to read the degradation of Witness 10 into testify.

The rule of optional completeness.

Some lawyers will recognize the above phrase, because it is in their jurisdiction's instance law or civil rule. What the phrase indicates is something applicable in all jurisdictions, to wit: if you plan on reading only part of the deposition, your adversary will accept the choice of reading other parts into the record. Due east.g., Fed.R.Civ.P., Dominion 30(a) reads:

"(6) Using Role of a Deposition. If a political party offers in bear witness only function of a deposition, an agin party may require the offeror to innovate other parts that in fairness should be considered with the part introduced, and any political party may itself introduce any other parts."

Your opponents specification, your jurisdiction's civil rule, or the trial estimate, will determine the timing of when what yous opponent wants read into evidence from the aforementioned deposition will exist read into bear witness. In federal courtroom, your opponent tin choose to have you their selections to the jury equally a office of your reading your selections, or instead may cull to expect until their portion of the trial to read it themselves. The judge may tell you lot to present everything (including the portions your adversary selects) in the order in which it was in the deposition. In summary, what yous read, and what the opponent wants read, will be read when and past whom the trial judge decides.

How to make the reading of a degradation an interesting audio-visual feel for the jury. Twelve theatrical tips in checklist form.

i. Take someone else read the answers if the witness.

If yous read all the questions and answers yourself, you will either diameter the jurors or misfile them. Past asking someone else to read the witness's answers, you go far: (i) more interesting to the jurors – and the judge, and (2) less confusing to the jurors – and the judge – as to who is "talking" in the deposition.

2. Tell the guess you have a reader.

During the trial, arroyo the judge in chambers and tell the judge you will be reading the deposition of Witness Smith into evidence and that yous take available John Jones to read the answers of Witness Smith while you lot read the questions, "and so that it will be easier for everyone to follow which are the questions and answers and it will go faster". I have never encountered a guess who did not breath a sigh of relief when told that the deposition answers would be read by someone other than the person reading the questions. Judges never disallow it, but judges do not like surprises during a trial. Past telling the judge in advance you eliminate any surprises for the judge, and thus eliminate awkward confrontations with a startled judge when you lot ask another person to come forrard and take the witness stand to read from the degradation.

3. Get a person who volition practise an excellent good job of reading the answers.

In addition to a adept reader with a strong clear voice, pick a reader who has is of the sex activity to fit the part, and who has with characteristics that help you. Due east.1000., if the deposed witness is your witness, pick a reader who will exist visually highly-seasoned to the jury. And tell them what to wear that will fit the office. East.g., reading the part of a business executive calls for white shirt, necktie, and jacket, but reading the part of the tow truck operator calls for sport shirt and sweater.

Preferably your reader will not exist someone that is NOT identified with your law firm. The jury will take the words of the witness more easily as non being a "put up" chore past you lot. Exercise not settle on using "whoever is gratis in the firm today".

TIP: Importantly, a drama student (or fifty-fifty a police student) will know how to read the answers with emphasis as you lot want it, due east.yard., you lot may desire the critical admission by the agin witness read slowly, loudly, and perhaps dejectedly. In all events, you want the testimony read with clarity, and read with intelligent use of phrasing.

I take e'er phoned the local college and asked a drama or speech teacher to aid me find a student who would like to earn a few dollars reading a "function" to a jury. The response has always been positive. (If you lot accept a police school in the area, finding a constabulary student, through the professor of trial do, is another skillful alternative.)

A side do good of using a educatee is that the jury thinks you are a "squeamish guy" with friends at the local schoolhouse.

four. Give your reader a highlighted copy of the degradation.

Highlight all the witness'south lines yous want read (and just those). It's a necessary particular of preparation that ensures they won't miss any of their lines. and too helps your reader to run into when the questions ends and he/she is now supposed to be speaking the reply.

5. Use a red marker to prevent reading of material.

There volition probably exist parts of the deposition that are not to exist read. You do not want to burden the jury with listening to recitations of exchanges between counsel, or unnecessary clutter (e.chiliad., the discovery deposition questions you needed to inquire most the concluding ten years of employment of the witness, but which are of no relevance at the trial). You certainly cannot accept read into evidence any questions and answers that the court has ruled are inadmissable at the trial. For those parts not to exist read — use a cherry marker to line them out and draw a line beyond unabridged pages non to be read. At the start of each omission, write in cherry-red "Skip to ….." to guide the reader to which page he/she should turn to next. Readers can get caught up with reading lines all the lines on each page, and miss small "Stop" marks written in the margins. Don't risk the run a risk of your witness reading irrelevant or inadmissible testimony to the jury. Therefore, use large ruby markers to conspicuously and boldly marking where the reader should cease, and to where they should skip to next read answers.

six. Tab the advisable pages to prevent what radio and telly producers telephone call "dead air".

When your reader is trying to notice what page he/she is supposed to read from next, the silence gives the jurors an opportunity to mentally wander away.

seven. Tell your reader to practice reading the transcript.

He should do reading the answers several times aloud, reading them in practice as though the reader in practice were trying to communicate in a room where the furthest juror is fifty feet away.

8. Tell you reader to marker up their copy of the transcript with reading helps.

The should mark their copy themselves with their own pronunciation helps and places they want to interruption sentences upwardly for readability. Drama students know how to do this. Eastward.yard., "Speak/ the speech/ I pray you.// as I pronounced information technology to y'all// trippingly on the natural language.///// And do not saw the air/ thus//. [witness gestures]." Do not marker the pronunciation or emphasis yourself, unless you lot desire a withering cross-exam of the reader on just what he/she is reading for you.

9. Reading includes motions of the witness shown in the transcript.

If the transcript indicates whatever indicates deportment by the deposed witness to illustrate a point (e.thousand., the transcripts says "witness points at foot," tell your reader that y'all want him/her to use an appropriate gesture in accord with the transcript. If the transcript states the deposed witness pointed to an exhibit, take the showroom bachelor during the reading of the deposition, and coach your reader beforehand to betoken to the exhibit at that signal in the reading.

10. Tell your reader costume, entrance, and stage position.

That is, tell your reader what to wear, when to testify up in the court, and where to sit until called to the witness stand, and how to move to the witness chair and how to sit down at that place.

11. Plan on your antagonist wanting to read degradation portions into evidence.

Don't automatically invite the agin attorney to read his/her own questions. Give it some thought whether information technology might exist more constructive to simply at the advisable points say to the jury "This question is by Mr. Henry." Your antagonist may ask for your reader to help. Expect that, and tell your reader it may happen, and may even require reading potions yous have crossed out in red as not to read during your "direct exam reading". Tell the reader what practise to if you object to a question or answer that the antagonist wants read by your reader, that is, to wait for the judge to make a ruling.

12. At the appropriate time in the trial, rise and say:

"Judge, I would like to now read the deposition of Witness Smith into evidence. John Jones will assistance united states by reading the answers given by Witness Smith at his degradation. Mr. Jones, volition you lot come forward with your re-create of the deposition and sit in the witness chair."

TIP: At this point a prissy touch is to plow to the court and ask the judge if he/she wants to explain the nature of a deposition to the jury. Near judges will and so solemnly say a few words about how the deposition is just equally important as live testimony, which gives a flake of attending-gathering to the reading of the text.

"Ladies and Gentlemen of the jury, I am now going to read the questions that were asked Witness Smith in his sworn deposition earlier a courtroom reporter. John Jones is a [e.g., college student at Mary Higher, or a legal banana at my office, et cetera]. He has agreed to assistance united states of america past reading aloud the sworn testimony of Witness."

"Mr. Jones, will yous now turn to page [your starting signal] and read the answers Witness Smith gave to the questions."