New and events of the Philadelphia Bar Asso.
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deposition excerpt. Let him call Mr. X to the stand if he wants." That is wrong; the adverse party need not be unavailable for you to read his transcript into the trial record under the cited rules. See Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080 (10th Cir. 2009). e. Depositions can be used as substantive evidence if the witness is unavailable within the meaning of the applicable rules. Fed. R. Civ. P. 32(a) (4); Pa. R. Civ. P. 4020(a)(3). That is, relevant portions of the witness's deposition testimony can be read to the jury. As you give thought to how you are going to do that, keep in mind the admonition of one seasoned trial judge that, "Beyond a doubt, the single least effective method of communicating information to a jury is the reading of a deposition." Robert M. Parker, Streamlining Complex Cases, 10 Rev. of Litig. 547, 550-551 (1991). f. So, if you are stuck with a transcript (and do not have a video of the deposition), do what you can to liven things up. Here are some options: i. Usually, counsel will read the questions and someone sitting in the witness box (often another attorney or a legal assistant) will read the answers. Think about who should play the witness. Consider using an actor from some amateur theater group. Typically, they do an excellent job and are not expensive. ii. Take advantage of Federal and Pennsylvania Rule of Evidence 611 which grants trial courts discretion over the mode and order of presenting evidence to make the presentation effective for determining the truth and to avoid wasting time. This means that the trial judge should be open to any suggestion that makes sense. So, for example, you might request permission to present the deposition testimony out of strict page sequence, presenting it instead by subject matter. You can then read all of the deponent's testimony about the meeting of Dec. 14, 2014 wherever it appears in the transcript and then all testimony on the next subject, etc. iii. Or you might ask permission to read a paragraph summarizing the deponent's testimony as to his educational and employment history (assuming there is no real dispute about it) rather than painstakingly reading aloud the Q and A. Usually you can reduce 15 pages of Q and A on education and employment to a single compact paragraph. There is good authority for allowing that procedure. Oostendorp v. Khanna, 937 F.2d 1177, 1179-1180 (7th Cir. 1991), cert. denied, 502 U.S. 1064 (1992). iv. The court may allow interspersing such narratives with the full Q and A, as in, "Dr. Spock testified that he first saw plaintiff on Jan. 22, 2014, at which time his complaints were ***. The doctor further testified that his examination revealed ***; and that he then saw the plaintiff six times over the next four months during which time plaintiff was treated conservatively. The doctor then recommended surgery. He explained the basis for his recommendation as follows [quote exact testimony from transcript]." It is remarkable how much such narratives can shorten the time to get in the key testimony and how much more palatable they make things for the jury. USING VIDEO DEPOSITIONS AT TRIAL a. The shorter, the better. There seems to be universal agreement on that. If you can boil it down to 8-12 minutes (not as hard to achieve as it sounds), that is generally better than a longer video. b. In recent years, there have been efforts to use video depositions in openings. Bob Mongeluzzi and David Kwass, two of this city's best plaintiffs' personal injury attorneys, in particular have been pushing for such use. The rationale for doing so comes down to three points. First, if, in their opening, counsel wanted to read a few key questions and answers from a witness's deposition transcript, most judges would permit him to do so as long as there was no dispute as to admissibility; so why not a video clip? Second, using video enhances accuracy. Third, using video will help jurors to pay attention, always a desirable thing. However, the counterargument is that the opening is supposed to be a statement of what counsel intends to prove, not a presentation of the proof itself. Also, openings with videos tend to have the feel of a damning "60 Minutes" program. My own vote would be not to allow videos to be used in openings. The case law is sketchy and conflicting. If you want to use videos in your opening, raise it with the judge in advance. c. There is very good authority for editing video depositions by subject matter (rather than playing the video chronologically), even as to more than one deponent. Thus, Standard 21 of the American Bar Association's Civil Trial Practice Standards (2007), concerning editing of video deposition testimony, states: "i. If it will assist the jury to understand the evidence or to determine a fact issue, the court should permit the parties to edit and present videotaped testimony by subject matter." The same Standard then goes on to say, "ii. The testimony of a single witness, or of multiple witnesses, relating to designated subject matter may be combined into a single presentation." (Emphasis added.) So, if there is a sharp dispute as to what was said at the meeting of Sept. 18, 2014, you can, with the judge's permission, play the video deposition testimony of each witness back-to-back as to the philadelphia lawyer Fall 2015 25