Using Deposition Testimony at Trial

From Discovery to Trial: Making Every Word Count

A well-prepared deposition can win or lose a case long before the first juror hears opening statements. The process captures testimony that can later be used to impeach a witness, refresh recollection, or serve as substantive evidence under Federal Rule of Civil Procedure 32. The difference between success and failure often lies in how a deposition, recorded months earlier, is used when it matters most.

According to Seth Horvath of Nixon Peabody LLP, ultimately depositions are not just about gathering facts; they’re about shaping the story that will unfold at trial.

The Value of Depositions

Every deposition serves multiple purposes: uncovering information, preserving testimony, testing theories, and creating leverage. Yet, as Richard Hellerman of The Law Office of Richard K. Hellerman, P.C. emphasizes, understanding what kind of deposition you are taking, and why, is crucial.

In Illinois, for example, the law distinguishes between ‘discovery’ and ‘evidence’ depositions. The former is exploratory; the latter is meant to stand in for live testimony. Under Federal Rule 32, the distinction may be less formal, but the intent remains the same: to capture admissible, reliable evidence that can later be presented to the court.

Cost is also a major factor. Matt Christensen of Johnson May notes that cost is the biggest disadvantage of depositions, particularly in bankruptcy or commercial cases where margins are thin. Depositions require attorney time, transcription fees, and sometimes travel or video setup costs. In high-volume or time-sensitive litigation, not every witness can or should be deposed. Selecting the right witnesses, identifying key issues, and controlling costs are therefore essential strategic choices.

Despite the expense, the benefits of a deposition, locking in testimony, evaluating witness credibility, and preserving evidence, often outweigh the drawbacks. The goal is not to take as many depositions as possible, but to take the right ones, with precision and purpose. A single well-executed deposition can create multiple pathways for use at trial.

Using Depositions for Impeachment

One of the most common uses of deposition testimony at trial is impeachment, i.e., challenging a witness who strays from their prior statements. This starts with a clear, accurate record. Leading questions, specific references, and careful follow-up all ensure that any inconsistencies later stand out. Ambiguity is the enemy of effective impeachment; every question should serve a purpose. Effective impeachment relies on precision, not aggression.

Hellerman advocates for the ‘funnel’ approach: starting broad, then narrowing down to exact statements that can be used later. This method ensures that the jury can easily see where the truth diverges. But restraint is just as important as precision. Over-impeaching can appear petty or distract from the bigger narrative. Jurors respect advocates who use cross-examination to reveal truth, not to badger witnesses.

Substantive Use: When Deposition Testimony Speaks for Itself

Deposition testimony isn’t limited to impeachment; it can also be used as substantive evidence. Under Federal Rule 32(a)(3), deposition testimony may be used if a witness is unavailable due to distance, illness, or death, or when it involves admissions by a party-opponent. That flexibility is critical for complex or multi-jurisdictional cases. It also means that attorneys must approach depositions as though they may be presented directly to the trier of fact. For this reason, preparation is critical.

Exhibits should be marked clearly, objections anticipated, and foundation established in the deposition itself. Failing to authenticate a document or clarify a statement at the deposition stage can lead to exclusion later. Pretrial organization, including transcript management and coordinated designations, can drastically reduce trial time and prevent confusion.

A dry transcript may suffice for a bench trial, but in front of a jury, presentation matters. As Jeff Leon of Karon LLC underscores, “You have to treat that deposition like it is the trial testimony.” Attorneys should consider using video depositions or dramatized readings to maintain attention and convey tone. The choice of format can transform passive testimony into persuasive evidence.

Bench vs. Jury Trials: Knowing Your Audience

In a bench trial, the judge values clarity and efficiency; in a jury trial, persuasion takes center stage. Federal Rule 32(c) acknowledges this by allowing flexibility in how depositions are presented. This may mean reading key excerpts with emphasis or playing video clips to convey demeanor. Judges are trained to parse transcripts, but jurors rely on delivery, tone, and context. Tailoring deposition presentation to the audience can make the difference between comprehension and confusion.

This distinction also affects preparation. For bench trials, concise designations and logical sequencing help the judge follow the testimony easily. For juries, attorneys may reorder testimony to fit the narrative arc of the case, ensuring it supports the theme established in opening statements. Every decision in presentation, from pacing to phrasing, shapes how evidence resonates.

Refreshing Recollection

Sometimes, deposition testimony isn’t admitted into evidence at all but is used to refresh a witness’s memory under Rule 612 of the Federal Rules of Evidence. This allows a witness to review their own prior statements and then testify based on refreshed memory. However, the deposition itself usually remains unseen by the jury, which hears only the new testimony.

Still, this tactic carries risks and overusing it can backfire as a jury could become skeptical of a witness who relies heavily on their previous deposition testimony. Using depositions to refresh recollection should therefore be a tool of necessity, not habit.

Turning Depositions Into Trial Advantages

The true value of a deposition lies in foresight. Every question, every objection, and every marked exhibit can become a building block for trial. Depositions should be treated as part of the trial itself, not as a separate phase of litigation. Used wisely, deposition testimony can make or break a case at trial. By treating every deposition as a rehearsal for trial, and every transcript as potential evidence, attorneys can turn ordinary questioning into an incredibly valuable resource.

To learn more about this topic, view Using Deposition Testimony at Trial. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested to read other articles about litigation.

This article was originally published here.