In a civil case, during the lawsuit process each side has an opportunity to question the other side's witnesses. There is a fancy term for that known as a “deposition.” It is also called an examination before trial.

The reality is that this is sworn pretrial testimony.

There are many different ways that we can use sworn pretrial testimony at the time of trial. One of the most obvious and recognized techniques for using pretrial testimony at trial is during the course of cross-examination.

When a defense witness who has given pretrial testimony is on the witness stand, and now I have an opportunity to question the witness, I will often ask him the same or similar questions I asked during the deposition.

If the answer that the witness gave a few years earlier differs remarkably from what he just gave at trial, then I can use his pretrial testimony to try and destroy this witness's credibility. It can make for a very effective technique.

However, it is often used sparingly so as not to overdo it with the jury. Also, minor inconsistencies would not really qualify for this type of technique.

Is there an instance during trial where I can use the witnesses pretrial testimony to bolster our claims? Is there an opportunity where I can use testimony the witness has given during the discovery part of the lawsuit to make a point to the jury that helps our case?

The answer is “Yes.”

When the judge asks whether I have another witness, I can tell the court “Your Honor, I would now like to read the testimony of the defendant in this case, Mr. Jones.”

“Okay counselor, go ahead.”

I then have to inform my adversary what page and what line I'm starting out so that he can follow along in the transcript of the pretrial testimony. I then must also provide a courtesy copy of the pretrial testimony transcript to the judge so that he can follow along as well.

Then I will begin reading selected questions and answers that I think are important. Naturally, if the defense feels that I left out certain segments that might be favorable to his case, he will have an opportunity to read those portions to the jury when I am done.

Reading pretrial testimony during the course of trial is to be given the same exact weight as if the witness is physically sitting in the witness chair at trial testifying.

If done correctly, this can be a very effective technique to show to the jury pretrial testimony given by witness prior to trial.

To learn about a case I handled where doctor lied during pre-trial testimony, I invite you to watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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