I was recently in a Trial in which the opposing Counsel began to read portions of my client’s Deposition in his closing argument which had not been introduced during the evidentiary portion of the Trial. I objected to the use as inappropriate and the Judge agreed with me and instructed the Jury to ignore any information not introduced into evidence during the Trial.
I knew the Judge and I were right….it just didn’t pass my smell test – but I needed to know why and researched the issue after the Trial. Opposing Counsel advised that his use of portions of the Deposition during closing that were not introduced into evidence during the Trial was proper based on NRCP 32(a)(2) which states:
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 we know, the rules cannot be looked at in a vacuum and need to be examined in the universe of the Court’s Rules and case law. Finding no case law on point in Nevada, I turned to the Federal Rule which has substantially similar language and found a case known as Cleary v. Indiana Beach, Inc., 275 F.2d 543 (7th Cir. 1960) which allowed a party to read in portions of an adverse party’s Deposition after that party had testified. It is important to note that this was done during the evidentiary phase of the Trial. This makes sense as the portions of the Deposition that have been read are “in evidence” and can be objected to during the evidentiary phase.
There are several Nevada Pattern Jury Instructions which confirm the Judge’s ruling that Deposition testimony of a party cannot be introduced for the first time during Closing Arguments.
Instruction 1.03 states (in pertinent part):
The evidence which you are to consider in this case consists of the testimony of the witnesses, the exhibits, and any facts admitted or agreed to by counsel.
Instruction 1.05 states:
Although you are to consider only the evidence in the case in reaching a verdict, you must bring to the consideration of the evidence your everyday common sense and judgment as reasonable men and women. Thus, you are not limited solely to what you see and hear as the witnesses testify. You may draw reasonable inferences from the evidence you feel are justified in the light of common experience, keeping in mind that such inferences should not be based on speculation or guess.
Instruction 2.01 states :
In determining whether any proposition has been proved, you should consider all the evidence bearing on the question without regard to which party produced it.
Instruction 2.03 states:
Certain testimony has been read into evidence from a deposition. A deposition is testimony taken under oath before the trial and preserved in writing. You are to consider that testimony as if it had been given in Court.
Putting this all together it is clear that the Jury is only to consider evidence that was presented during the evidentiary phase of the Trial. There is one more Rule that comes in to play here which prevents a party from practicing Trial by ambush (or, in this case “Argument by ambush.”) NRCP Rule 16.1(a)(3) (Pretrial Disclosures states, in pertinent part:
(3) Pretrial Disclosures. In addition to the disclosures required by Rule 16.1(a)(1) and (2), a party must provide to other parties the following information regarding the evidence that it may present at trial, including impeachment and rebuttal evidence: . . .
(B) The designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; . . .
This, of course, allows the other parties to prepare for, and object to, portions of Deposition being read into evidence before the Jury is exposed to, what may be, inappropriate evidence. Allowing a party to read portions of a Deposition to the Jury for the first time during closing argument is unfair to the other parties and principles of fairness and is not allowed by the Rules.