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There you are in Milwaukee, representing your client, the defendant in a toxic tort case. Counsel for the plaintiff is about to depose a witness who previously lived in the plaintiff’s neighborhood in Maryland. Now, as the plaintiff’s counsel questions the witness, you sit in amazement as blatantly false testimony unfolds.
Why impeach now? you think. I’ll save it for trial to avoid tipping my hand too early.
Fourteen months later, the trial begins. As the plaintiff’s counsel proceeds with her case you sense something is wrong. That Milwaukee witness with the fantastic story does not seem to be lurking in the halls.
Suddenly, opposing counsel stands and quietly states: Our next witness is unavailable. He lives out of state. I wish now to call my associate, Linda Jones, to the stand. I would like to read the questions from the witness’ deposition; Ms. Jones will respond.
Your thoughts at that moment: Where is my deus ex machina to save the day? The bad news is there probably isn’t one. With the witness safe and sound in Wisconsin, your plans for that eviscerating cross will have to be set aside. The good news is you can avoid this situation by familiarizing yourself with the rules on the use of depositions when a witness is unavailable.
Taken together, these rules make clear that you cannot take any deposition for granted. Trial strategy must incorporate the examination of witnesses in deposition for many reasons, one of which is to avoid the problem of not being able to confront an unavailable witness later on.
Court rules provide that the deposition of an unavailable witness may be used at trial by any party for any purpose against any other party, if the court concludes that:
- The witness is deceased;
- The witness is out of state;
- The witness is unable to attend trial because of age or sickness; or
- The attorney was unable to obtain the witness’ attendance by subpoena.
Under very rare circumstances, the court can allow, upon a motion and reasonable notice, the use of a witness’ deposition at trial even if the witness is available. To accomplish this, counsel must demonstrate that exceptional circumstances exist and use of the deposition is in the interest of justice. See Federal Rule of Civil Procedure 32(a)(3)(E); Maryland Rule of Civil Procedure 2- 419(a)(3)(E). Consider also Maryland Rule of Evidence 5-804 and Federal Rule of Evidence 804, which establish hearsay exceptions when the witness is unavailable.
Finally, bear in mind that if your witness is an expert, and you undertook a video deposition and stated in the notice that you intended to use the deposition at trial, you may use the expert’s deposition even if he or she is available.
What type of notice must you give to opposing counsel when you plan to use in court the deposition of a witness you claim is either unavailable or whom you are unable to subpoena for trial? In many cases, none at all. Unless a pretrial order requires notification or you are claiming that exceptional circumstances exist, you are not required to give advance notice of your intention to introduce the deposition at trial.
On the other hand, what is good for the goose is good for the gander. You may wish to establish an agreement with opposing counsel on a number of pretrial matters, including providing advance notice of particular witnesses or the use of deposition testimony.
Circumstances that do require notice are the introduction of the video deposition of an expert witness or when you determine under the rules to present a motion that exceptional circumstances dictate the use of a deposition even if the witness is available. See Shives v. Furst, 70 Md. App. 328 (1987).
Don’t Miss Your Chance
What these rules should bring home is that, when attending the deposition of an opposing witness who is likely to be unavailable for trial, you must be prepared to cross-examine fully. Tipping your hand too early is generally not as problematic as leaving your client vulnerable to questionable adverse testimony. Don’t miss the chance to impeach a witness who, unluckily for you, cannot or does not appear on the witness stand later.
If, on the other hand, you elect to use a deposition of an unavailable witness, you should consider the technique you use to showcase the testimony. Should you read portions of the deposition by standing in front of the jury? Or would it be more compelling to call co-counsel to the witness stand to read the answers as you ask questions, enhancing the effect of having a live witness respond? These are decisions that you should make, subject to the court’s discretion.
Whether the witness in question is yours or the opposing counsel’s, the trial will go more smoothly if you can get all you need from an out-of-town, ailing, or elderly witness at the deposition, rather than waiting for trial. Chances are, that witness in Milwaukee won’t make it to Baltimore to be impeached before the jury!
About the Author
Trial lawyer and author Paul Mark Sandler is a partner with Shapiro Sher Guinot & Sandler in Baltimore. He is a trial lawyer who has developed a national reputation for successfully representing many notable clients in trial and appellate courts. A partner in the firm of Shapiro Sher Guinot & Sandler, he is known for his thorough representation of clients, as evidenced by his remarkable courtroom victories. Paul Mark Sandler also achieves successful out of court resolution of disputes and has vast experience and success in alternative dispute resolution, including mediation, arbitration, and mini-trials. He works closely with clients to achieve results in a cost efficient manner using state of the art courtroom technology.
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