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  • Writer's pictureMary Watson Smith

Confessions of a Former Law Clerk: How to Offer Depo Testimony at Trial without Ruining the Record

You take a perpetuation deposition. You and your opponent stipulate that the deposition will be admitted at trial in lieu of the witness’ live testimony, subject to the trial court ruling on any objections raised at the deposition. You and opposing counsel have agreed to try the case at a bench trial. The judge asks you and your opponent how the deposition testimony should be received into evidence. You and your opponent agree to play the deposition testimony and to notify the court if there is an objection that needs to be asserted. The tape begins to play and eventually arrives at a point where you need to assert an objection. You stand up and tell the court to stop the tape. You and your opponent argue the objection. The court rules, and the trial goes on. What’s the problem?

Although it may be completely clear to everyone in the court room what portion of the deposition is at issue, you have likely left the court of appeal completely in the dark. Let me explain. I worked on an appeal recently where the perpetuation deposition was played for the trial court, and the judge ruled to exclude a big chunk of testimony. The court and counsel referred to timestamp where this testimony appeared in the video because that’s what everyone was watching in court (e.g., “everything between 35:47 and 48:20”). The problem was that counsel did not enter the video into evidence but instead entered the deposition transcripts which weren’t timestamped. In that case, it was actually impossible for me to figure out what portion of the testimony had been excluded and what was not excluded from looking at the transcripts. As an appellate lawyer working on the case, it was frustrating to say the least. But, as a former appellate law clerk, I can’t tell you how annoyed I would have been if I was trying to read this record for my judge.

When a video deposition is played in court, the best practice is for you or your second chair to read along with the transcript as it is played so that when the time comes for asserting/answering an objection you can refer to the page/line numbers for the record. I think this is the best practice because, even if you introduce the deposition video into evidence along with the deposition transcript, law clerks and judges like to read a transcript all the way through. Think of the trial record as a story (but not a mystery novel!) that the reviewing court is reading. Don’t leave your reader hanging! It’s already a little bit annoying to have to read the deposition transcript and the trial transcript at the same time. But, it is super annoying for judges and their staff to have to stop reading altogether in order to retrieve a video simply so they can understand what the fuss is about.

Take it from a former law clerk. The golden rule of advocacy is this: minimize the extent to which judges and their staff must flip between documents and exhibits to understand the issues and the arguments you are making. They will love you for it!

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