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Deposition Transcript Only - What are your thoughts?

What is your position regarding the presentation of evidence at a Hearing by deposition transcript only (the witness does not appear either in person or by video)?

Please provide your thoughts/comments below.

Comments (18)

As in any kind of evidence, one of the freedoms that we arbitrators have is the recognition that we aren't required to give each piece of evidence the same weight. If there is only a deposition with no one to defend or explain it, then surely it would carry less weight than something that can be examined.

Mark C. Zauderer:

I always prefer live testimony if available. Transcripts are two dimensial; live testimony is three dimensional. They don't capture the nuance and can be misleading. I'm reminded of the line in My Cousin Vinnie: "I shot the sheriff, right." It was said with sarcasm, but the transcript was used against the fellow at trial.

I agree the deposition transcript is not as good as live testimony. But the opportunity to cross examine was there. I would give it the weight I thought it deserved. The Arbitrator should bear in mind that not all witnesses can be subpoenaed to the hearing. And the Arbitrator should understand that even those who can be subpoenaed may have health or other issues that preclude live appearance.

Tc Barr:

This is an easy one. Anyone who has ever read the transcript of a deposition or testify can tell you that it is, at best, a poor representation of what was presented.

scott link:

Deposition testimony is to be given the same weight as 'live' testimony. Both sides are present and can examine the witness who is under oath. Approximately 25% of all testimony in trial is through the reading of depositions. Try getting a doctor to appear live at trial or arbitration. It ain't happening.

While hesitancy in accepting a deposition transcript with nothing more is clearly appropriate, I can also envision circumstances in which it is appropriate to take such submitted testimony into evidence. The over-arching value, I believe, is to be flexible in considering such atypical requests and avoid allowing rigid adherence to "best evidence" to deprive a party of necessary evidence.

Micalyn S. Harris:

I'd want some background. Was the deposition indicated in the exchange of information prior to hearing as possibly being offered into evidence? Did counsels discuss and agree to its admission? If both parties agree a deposition should be admitted, admission would be acceptable and the question would be weight. If one party objects, there would have to be a showing of necessity with no other way to obtain the information, that the information was key, that the unavailability of the witness was beyond the requesting party's control (e.g. death, physical or mental incapacity) and the arbitrators' need for the information would also be a factor. Other specific factors would include whether there was adequate opportunity for cross-examination, whether it was the same or a different attorney examining and cross-examining and what kind of information was involved - factual, background, technical, etc. It feels uncomfortable at best, and under most circumstances, an objection would be difficult to overrule.

Judge Gerald Harris:

If the person deposed was cross-examined and assuming the parties are in agreement as to admissibility, I see no reason not to accept the transcript. If admissibility is disputed I would want to hear the reasons for the unavailability of the witness and any other basis for the objection. Ultimately, the test will remain whether the party with the burden of proof has met its obligation based on the evidence presented, including deposition transcripts.

Mark F. Brancato:

If the witness is employed by or under the control of either party or otherwise is critical to the claimant or respondent, then he/she should testify in person unless there is a truly compelling reason why that is not possible. I want to see and hear the witness live, ask her questions or ask her to explain her testimony and be in the best position possible to see her demeanor, hear the inflection, hesitation or emotions in her voice, and get a true sense of the person so that I can more accurately assess her credibility and the merits of her testimony. If either party anticipates that a party or critical witness may be unavailable to testify at the hearing (for example, the witness resides in Australia and the arbitration hearing is in Boston), then videoconferencing should be explored.
Presenting testimony by written deposition will give me only part of what I need, and, in my view, is a method that should be used only as a last resort.

Anonymous:

It would be preferable if it as a video deposition in which the adversary could cross exam. If not the weight of the evidence may be weaken if the matters are in controversy.

Charles Shaffer:

I'm a trial lawyer. If a deposition was taken for use at trial it is admissible.

Sid Eagles:

I agree with Judge Harris's comments and also with the comments of Mr. Shaffer. My bottom line would be to accept deposition testimony if it was prepared and offered for trial purposes, in the absence of disqualifying factors .

I concur with Arbitrator Steven Certilman, who listed the array of factors to be considered.

Pat Westerkamp

As a couple of people have mentioned, use of deposition testimony in lieu of live testimony is commonplace at trial, subject to a couple of conditions such as opportunity to cross examine. While live testimony is sometimes preferable, use of depositions may have advantages in terms of expedition (for example, by requiring the parties to designate the pertinent sections in advance, or by agreeing that the arbitrator can read the testimony outside the hearing room). Seems unwise to make use of depositions more limited or difficult in the arbitration context, and if anything an arbitrator should have somewhat more flexibility than a trial judge in relaxing the restrictions on use.

Dennis R. Suplee:

If the deposition testimony were admissible under the applicable rules, I would allow it. If not, I would not admit it in the absence of agreement by the parties.

If it were admissible, I think that I would caution counsel who wanted to admit the testimony that reading such testimony into the record or leaving it to the arbitrator to read it on his/her own is, as a general matter, a very ineffective way to present testimony. Indeed, one federal district court judge described reading such testimony into the record as "an act of contributory somnolence."

One exception: If counsel has a crisp clear admission from a witness on the other side, reading just that admission into the record can be very effective.

E. William Pastor:

Admissible, yes, assuming the opportunity to cross-examine at the time of deposition, or in the absence of an objection by the opponent.

However, it is not the preferred mode of presenting testimony for many reasons, especially the inability of the arbitrator to view the demeanor of the witness (unless the deposition was videotaped).

Robert Echols:

In prudence and foresight, the arbitrator can include in his/her Scheduling and Case Management Order that if depositions are taken during discovery, the opposing counsel may cross-examine the witness at that time so there is full testimony by the witness from both sides at the final hearing. Or course, it is better to have the testimony from a live witness at trial because other proof will be presented and other questions may be relevant and helpful. However, if the opposing attorney does not have a chance to cross-examine the testifying witness when the deposition is taken, he/she is disadvantaged in challenging the testimony of the unavailable witness at the hearing. The arbitrator should clarify this matter before trial if possible so the attorneys are not arguing about the admission of the signed sworn one-sided deposition because the other attorney failed to challenge the testimony when it was taken in discovery.

Sayward Mazur:

If the deposition was taken for the arbitration, then presumptively there was the opportunity and the motivation for adverse parties to conduct a full cross-examination, and clarify any ambiguities in the testimony. Accordingly, such a deposition should not only be admissible, but it should carry significant weight, notwithstanding that in-person testimony is usually preferable. However, sometimes a party will offer a deposition that was taken in discovery in another case, where the adverse party in the arbitration may not have been there, or may not have had sufficient motivation or opportunity to fully cross-examine on the issues germane to the arbitration. I would be hesitant to allow it into evidence under those circumstances, or simply not give it great weight if admitted.

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