The overwhelming majority of all cross-examinations happen in depositions, not in courtrooms. Whether a lawyer takes the deposition in a case in state court or in a case in federal court has important procedural and strategic implications. While the rules governing depositions in state and federal court cases are similar, attorneys should be aware of the key differences between the two. The trial lawyer who fails to appreciate these differences and to adjust deposition strategies accordingly faces potentially disastrous consequences at the courthouse.
• Use of depositions at trial . In state court, a lawyer can use a deposition for any purpose at trial, regardless of whether the witness is unavailable for trial. In federal court, however, Federal Rule of Civil Procedure 32 limits the use of depositions of witnesses other than parties and their agents and designees to circumstances in which the witness is “unavailable.”
