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Using Depositions During Opening Statements

Authors: David Markowitz and former Markowitz Herbold litigator Lynn Nakamoto

“The purpose served by an opening statement is to acquaint the jurors with the issues, the contemplated testimony and the relationship of the latter to the issues.” State v. Reynolds, 164 Or. 446, 454, 100 P.2d 593 (1940).

Opening statement is “the privilege of the attorney for each party, if he sees fit to exercise it, and is obviously intended to advise the jury concerning the questions of fact involved, in order to prepare their minds for the evidence to be heard, . . . and how full it shall be, within reasonable bounds, is left to the attorney’s discretion.” Lane v. Portland Ry., Light & Power Co., 58 Or. 364, 368, 114 P. 940 (1911).

Now that video recordings of depositions are commonplace and the technology for editing and using excerpts of video recordings during trial is readily available and financially feasible, lawyers are not limited to describing the testimony that they expect to elicit during trial during opening statements. Lawyers now can show the jury key testimony directly from witnesses by selecting excerpts from video recordings of depositions. Some court rules even encourage the use of electronic presentations at trial. See, e.g., North Carolina Business Court Rule 16.1 (“Electronic presentations and technologically generated demonstrative evidence should be used to enhance the trier-of-fact’s understanding of facts in the action or to further the convenience or efficiency of the litigation process. . . .”). This article focuses on the law governing the increasing use of deposition testimony during opening statements.

Rules limiting content of opening statements.
No rule specifically addresses the use of depositions during opening statements. Oregon court rules allow opening statements but do not provide much guidance as to their content. See ORCP 58 B(3) (in a jury trial, the “plaintiff shall concisely state plaintiff’s case and the issues to be tried” and then the defendant shall “in like manner” state its case); ORCP 58 A (in bench trials, parties have the same opportunity to present opening statements).

The federal rules do not contain a counterpart to ORCP 58, and the District of Oregon has not adopted a local rule specifically addressing opening statements. But, the District of Oregon does require lawyers to adhere to the professional standards required of Oregon lawyers and the Statement of Professionalism it adopted in 2006. L.R. 83.7(a). Both of these sources provide general guidance on content of opening statements.

Guideline 1.9 for lawyers practicing in the District of Oregon states, “We will not knowingly misstate facts or law. We will not knowingly cause a person to form a mistaken conclusion of facts or law.” App. to L.R., Form 23. Oregon Rule of Professional Conduct 3.4 places more specific limits on the attorney’s statement of the case. Under Rule 3.4(c), a lawyer cannot “knowingly disobey an obligation under the rules of a tribunal,” and under Rule 3.4(e), a lawyer cannot “in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence . . . .” Cf. former DR 7-106(C)(1) (“In appearing in the lawyer’s professional capacity before a tribunal, a lawyer shall not [s]tate or allude to any matter . . . that will not be supported by admissible evidence.”)

Thus, the professional standard for judging the propriety of an attorney’s judgment in placing material in the opening statement is one of objective good faith anchored on the relevance and admissibility of the information, and on adherence to prior court rulings concerning claims or defenses that may be presented at trial and admissible evidence.

Courts recognize that in opening statement, a lawyer may properly discuss in good faith aspects of the case that the lawyer reasonably anticipates proving, even though ultimately it turns out for any number of reasons that the evidence is not admitted or the witness does not appear during trial. See, e.g., State v. Davis, 345 Or. 551, 587-88, 201 P.3d 185 (2008) (stating rule). Thus, the trial judge has discretion to control the scope and manner of opening statement, and to determine the good faith of the attorney making the opening statement. See Blanton v. Union Pac. R.R. Co., 289 Or. 617, 622, 616 P.2d 477 (1980) (“the trial judge is in the best position to determine whether inadmissible evidence or improper conduct has such a prejudicial effect upon the jury that it impairs one’s rights to a fair trial”).

Remedies when a lawyer crosses the line.
If your opponent is showing excerpts from deposition testimony by video and you have an objection, you must object immediately and not wait until completion of the opening statement – or risk waiver of the objection. See Blanton, 289 Or. at 623 (the defendant waived objection to the plaintiff’s opening statement pointing out fault on the defendant’s part in a damages case where defendant admitted liability). If the conduct in opening statement creates substantial prejudice to the opposing party, then the trial judge should grant a mistrial. See State v. White, 303 Or. 333, 341-42, 736 P.2d 552 (1987) (prosecutor commenting on defendant’s exercise of right to remain silent).

Of course, if the attorney deliberately injects inadmissible content into his opening statement, the lawyer may be subject to discipline. See In re Conduct of Eadie, 333 Or. 42, 63, 36 P.3d 468 (2001) (discipline of attorney who deliberately injected defendant’s insurance coverage into trial despite trial court’s warnings). And, the court may assess costs related to the mistrial. See Tavera v. Southland Corp., 188 Or. App. 484, 72 P.3d 124 (2003) (where trial court granted defendant’s motion for mistrial and ruled as a condition for continuing the case that plaintiff pay for costs and fees related to mistrial); see also Frost v. Lotspeich, 175 Or. App. 163, 174-76, 30 P.3d 1185 (2001) (discussing contempt powers of courts generally).

Drawing the line is difficult.
Testimony by parties: One relatively safe area for using excerpts of deposition testimony involves testimony of parties. Because deposition testimony of a party is an admission of a party opponent, ORE 801(4)(b) and Fed. R. Evid. 801(d)(2), courts allow references to relevant testimony during opening statements. See Thunderhawk v. Union Pac. R.R. Co., 891 P.2d 773, 782 (Wyo. 1995) (defendant properly read portions of plaintiff’s deposition testimony during opening); Timsah v. General Motors Corp., 591 P.2d 154 (Kan. 1979) (defendant properly commented on deposition testimony of a plaintiff); Carrasquillo v. City of New York, 866 N.Y.S.2d 509 (N.Y. Sup. Ct. 2008) (motion in limine to preclude defendants from using pretrial deposition testimony of a child party in opening statement and at trial denied); see also Gillson v. Gulf, Mobile & Ohio R.R. Co., 246 N.E.2d 269, (Ill. 1969) (reference in opening statement to contents of letter by party not permitted because it was not a party admission relevant to issues for trial). Even relevant admissions, though, may be objected to under ORE or Fed. R. Evid. 403.

Testimony by non-party witnesses: Although some courts allow visual presentations of relevant testimony by witnesses, see Spence v. Southern Pine Elec. Coop., 643 So. 2d 970, 972 (Ala. 1994) (defendant could properly use blowups of portions of transcripts of depositions of plaintiff’s witnesses where they testified at trial in accordance with deposition), using deposition testimony of your own or the other side’s witnesses during opening statements introduces hearsay. Although testimony by witnesses in perpetuation depositions taken under ORCP 39 I is not hearsay, ORE 801(4)(c), that still leaves open the question of what is relevant and admissible.

In light of the potentially severe penalties for erring, attorneys intending to use deposition testimony during opening statements should get consent of opposing counsel or the trial judge beforehand.

This article appeared in the spring 2009 issue of the Oregon State Bar’s Litigation Journal.