There are a number of reasons to take an opposing party’s deposition prior to trial. Such depositions can limit what the other party can credibly testify to at trial.[i] Such depositions can be used to test an opposing party’s credibility.[ii] Finally, such depositions case be used to gain helpful admissions that strengthen one’s case and weaken the other side’s case.
In my experience, most attorneys use these depositions simply to impeach the other party at trial. They ask the opponent the same or similar questions at trial and then, if the trial answer differs from the deposition answer, they use the deposition answer to demonstrate the inconsistencies.
This use of an opponent’s deposition to establish the prior useful testimony is both inefficient and often ineffective. It allows the opposing party to pontificate about his or her prior answers and explain away prior harmful testimony. The better use of an opponent’s deposition is to simply use that testimony directly.
Which is why I remain surprised at how few of my colleagues remain unfamiliar with Rule 32(a)(2), SCRCP. That rule allows:
At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:…
(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.
As an opposing party’s deposition testimony is an “Admission by Party-Opponent” as defined by Rule 801(d)(2), SCRE, such deposition testimony is not hearsay and may be offered as direct evidence. “A statement is not hearsay if… The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity…”
There are procedures under Rule 32(a)(5), SCRCP, that one must follow to use an opponent’s deposition at trial.
(5) Excerpts From Depositions to Be Offered at Trial. At least 1 day prior to offering excerpts from a deposition in the case in chief counsel, unless otherwise ordered by the trial judge, shall furnish to the trial judge and, at the same time and by the same means, furnish to all opposing counsel the excerptsfrom depositions (by page and line number) and a list of deposition exhibits which counsel expects to introduce in the case in chief at trial. When thedeposition excerpt is offered at trial counsel for the adverse party shall furnish to the trial judge and, at the same time and by the same means, furnish to allopposing counsel any objections (by page and line number) to opposing counsel’s deposition excerpts and any additional excerpts from the depositions (by page and line number) which counsel expects to be read pursuant to SCRCP (a)(4), as well as a list of deposition exhibits to be used. With reasonable notice to the trial judge and all counsel, other excerpts may be read.
However, simply having portions of a deposition read into evidence at trial—without allowing the opposing party to explain, justify, or backtrack from that testimony—is a powerful method of advocacy. When one likes the opposing party’s deposition testimony, use Rule 32, SCRCP to enter that testimony directly and reduce an opposing party’s ability to mitigate such prior testimony.
[i] If the other side testifies less favorably at trial than at the deposition, the deposition can be used to impeach the trial testimony.
[ii] There are myriad ways depositions can test an opponent’s credibility. The deposition testimony can be internally inconsistent. The deposition testimony can be inherently uncredible. The deposition testimony can be contradicted by other, more credible, evidence or testimony.
This is fantastic. I am trying to learn the ins and outs of trial strategy, and I appreciate such a well-written article. I had been assuming up to this point that depositions were only a means to lock in testimony, impeach at trial, or establish the grounds for summary judgment. But this opens up a completely different tactic.