Episode 130 - Choosing An "Actor" To Read Deposition Testimony in Evidentiary Hearings and Trials

Today, Jim Garrity talks about a powerful technique for increasing the persuasive impact of deposition testimony that must be read to the trier of fact when a deponent is unavailable. Done properly, according to some lawyers who've used the tactic, it can contribute to victory, without drawing the attention of an opponent.And while you're here, would you mind taking just a few seconds and give this podcast a 5-star rating on whichever site you visited (e.g., Apple, Spotify, Google). Your positive ratings are a huge thank-you to the production team that helps prepare and produce each episode. It means more to them than we can possibly explain. Thanks!SHOW NOTESwww.ActorsAtLaw.com (“Actors-at-Law provides trial attorneys with professional character actors as deposition readers at trial when witness is not available and a national movie/commercial casting director can help you with witness preparation and presentation skills in the courtroom or at mock trials")The Florida Bar Journal, “Action! This Witness is Played by An Actor!”, by Jan Pudlow, Senior Editor, July 1, 2011; https://www.floridabar.org/the-florida-bar-news/action-this-witness-is-played-by-an-actor/PrawfsBlog, July 11, 2011, Something New Under the Sun: Actors for Hire to Read Depositions, Baker, Thomas E.; https://prawfsblawg.blogs.com/prawfsblawg/2011/07/something-new-under-the-sun-actors-for-hire-to-read-depositions.htmlKlapsa, Katherine Lee, Lawyers Bring Big-Screen Drama To The Courtroom: How Popular Culture’s Influence On The Law Has Created The Need For “Professional Witnesses” 18 Barry Law Rev. 355 (Spring 2013) (discussing the impact of movies and television on jury expectations to see powerful, compelling witnesses on the stand)Siegel, David D., Federal Subpoena Practice Under The New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197 (Jan. 1992) (noting that when deponents are unavailable, “The questions and answers are read by others, sometimes even actors, with no opportunity to observe demeanor, etc., but the geographical restrictions on the civil subpoena have nevertheless made the deposition the main alternative [to live testimony]”)Elfrink, Tim, Lincoln Road’s Actors at Law Hires Out Talent to Read Witness Testimony, Miami New Times Magazine (July 7, 2011); https://www.miaminewtimes.com/news/lincoln-roads-actors-at-law-hires-out-talent-to-read-witness-testimony-6381626.Levy, Art, Courtroom Drama: Is It Ethical To Hire Actors To Portray Witnesses? Florida Trend Magazine (Jun. 14, 2011) (discussing tactic at length from business, legal and ethical perspectives); https://www.floridatrend.com/article/1856/courtroom-drama-is-it-ethical-to-hire-actors-to-portray-witnessesMorris v. Bland, Case No. 5:12-cv-3177-RMG, 2015 WL 1290632 (D. S. Carolina Jan. 30, 2015) (Not reported in Fed. Supp.) (denying taxation of costs associated with the hiring of, and lodging for, a professional actor to read testimony, where deposed witness wound up testifying live; but adding, “The normal practice for reading a deposition of an absent witness is that the presenting counsel will read the deposition to the jury or have a colleague take the witness stand and read the part of the witness. In over 35 years as a trial litigator and trial judge, the Court has never seen or heard of a lawyer hiring an actor to read a deposition. If an actor was proposed to be used, the Court would have to carefully evaluate the request to prevent any distortion of the testimony by an over-dramatic reading. The Court finds the hiring of an actor to read a deposition in this matter was unnecessary and unreasonable and denies reimbursement for this cost”)Browning v. Advoc. Health & Hosp. Corp., __ N.E. 3d __ (Ill. Ct. App. Sept. 15, 2023), 2023 WL 5988690 (affirming $49 million verdict where excerpts of deposition testimony of doctors were presented by a “reader,” and where the jury was instructed that the “testimony [was] previously taken under oath at a prior deposition. You are to treat that testimony as if the doctor was here;” in addressing dissenting judges’ criticism of the use of a reader, the court said that “The dissent implies that having an actor read a deposition at trial is unusual. The Illinois Rules of Evidence and the Illinois Rules of Professional Conduct of 2010 do not prohibit it, and the practice has been around for years. Even if we to assume prejudice, neither the defendants nor the dissent explain how that would have affected the outcome.”)