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Deposition Transcript Only

Wednesday, January 07, 2026 6:43 PM | Anonymous


Court Reporter Transcript

What is your position regarding the presentation of evidence at a hearing by deposition transcript only (the witness does not appear either in-person or virtual)?

What are your thoughts?

Comments

  • Thursday, January 08, 2026 9:47 AM | Steven Skulnik
    Depositions in an arbitration?
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    • Friday, January 09, 2026 11:27 AM | Gerald Baldwin
      I don’t see it as a problem. I am confident that the opposing counsel will do a thorough job cross examining. When conducting a document only arbitration, one never sees or hears the witness testimony and it is not uncommon in my practice that the parties to a document only hearing opt to submit deposition transcripts.
      Link  •  Reply
  • Friday, January 09, 2026 10:26 AM | Robert L. Arrington
    I prefer live testimony, but sometimes deposition testimony is the best the parties can do for a witness due to health, scheduling, and other factors. I will receive the deposition. I do not like a hearing in which all testimony is by deposition and will not allow it except under unusual circumstances.
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  • Friday, January 09, 2026 10:35 AM | Lesley Green, Judge Ret'd.
    It is entirely up to the lawyers as to how they want to present their case. If they want to submit testimony by deposition testimony, that is fine with me. It can be more efficient that way, especially where credibility is not a big issue.
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  • Friday, January 09, 2026 10:37 AM | Paul Peter Nicolai
    I do not have a problem with this. My only requirement is that the full transcript of the deposition be made available to me, not just those portions counsel wants to cite.
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  • Friday, January 09, 2026 10:49 AM | Charlie
    Depends on writers availability, health issues and travel expenses. Want transcript sections exchanged before hearing so all parties can respond. Preference is live witness but all factors considered
    Link  •  Reply
  • Friday, January 09, 2026 10:59 AM | Justice (Ret.) Mathias W. Delort
    A live witness exhibits body language, tone, hesitation of speech, and other characteristics that help the fact-finder determine credibility and what weight to give the witness's testimony. Transcripts do none of those things. That being said, admitting a deposition transcript may be the best solution when witnesses are unavailable due to scheduling or travel considerations. This problem is alleviated somewhat by the use of video technology to allow witnesses to testify remotely. Everything needs to be done on a case-by-case basis.
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  • Friday, January 09, 2026 11:14 AM | Marc Elliott
    If both sides stipulate to it, and then it is fine, but otherwise it can be problematic. For the proponent of the testimony, it is convenient, and sometimes if a witness has practical difficulties with an appearance in person or remotely, I would allow it, but it would depend on the circumstances, because it definitely puts the opponent at a disadvantage when it comes to cross-examination.
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  • Friday, January 09, 2026 11:34 AM | Thomas P. Valenti
    If both sides agree, then it is not for me to diagree However, I would ask the parties to prepare a joint summary of the testimony rather than a transcript. Option A: Fully Joint Summary

    Ask the parties to submit:

    A single joint summary (2–5 pages max) highlighting the material testimony and citing transcript lines.

    Any areas of disagreement can be footnoted.

    If Option A is not achievable, then Option B: Joint Submission with Divergent Summaries

    If they can’t agree:

    Each party submits a summary of the testimony, with highlighted agreed portions and disputed interpretations clearly marked.

    This preserves neutrality and lets you judge the weight and relevance.

    In a procedural order, Make it clear in the procedural order that:

    “The joint summary is for the purpose of streamlining and aiding the tribunal’s understanding of the evidence. The full deposition transcript remains part of the evidentiary record.”

    Following this guideline strikes a balance between:

    Respecting party autonomy (they’ve agreed),

    Preserving procedural fairness, and

    Driving toward an efficient, focused hearing.
    Link  •  Reply
  • Friday, January 09, 2026 11:35 AM | Anonymous
    This is not an uncommon occurrence in arbitrations or trials. I cannot determine why a party would be precluded from presenting evidence du deposition.
    Link  •  Reply
  • Friday, January 09, 2026 11:41 AM | Dustin Hecker
    I prefer live testimony. It's generally more focused on what matters than is the case with a deposition transcript, it of course allows for better credibility determinations if that matters, and I can ask questions if I see something that I believe needs to be better explained. But, if counsel stipulate to the deposition transcript instead of live testimony, I would be hard-pressed to object. It's their case to present, not mine. And, unless the witness just can't or won't appear and the transcript is the best they can do, they obviously don' t think the witness's credibility is much of an issue one way or the other.
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  • Friday, January 09, 2026 12:14 PM | Augustus Richardson
    I do not see any problem, provided the parties agree that the transcript represents the witness's direct evidence and that the witness may be cross examined on it. (That is to say, I would treat it as if direct evidence was being given by affidavit.) I do agree that depositions are not always as focused as they ought to be (as in the case of an affidavit), but again, provided the parties agree, there is no issue.
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  • Friday, January 09, 2026 12:17 PM | Joseph G (Chip) Galagaza
    I would want to first know what the reason is that the witness could not appear at least virtually, if not in-person. Second, I would want to know if the witness is under the control of one of the parties, e.g., an employee of one of the parties as opposed to someone with no direct connection with the parties. Third I would want to know if opposing counsel examined the witness in the deposition. I cannot imagine many scenarios in which a witness could not appear virtually. I would give more leeway to a witness who is not under the control of one of the parties as to reasons why the witness could not testify virtually. If there is a good reason the witness cannot appear virtually and opposing counsel did examine the witness, I would permit the presentation of the evidence by deposition. Before doing so however, I would also advise counsel for the party proffering the evidence by deposition that in the event of the necessity to make a credibility resolution, the likelihood of a favorable resolution of the credibility question is diminished with respect to the witness appearing only by a deposition.
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  • Friday, January 09, 2026 12:20 PM | Denise Presley
    If the parties agree to testimony via deposition transcripts, I would allow it. I’m not sure I’d require a copy of the full document. The questions in depositions are designed to be highly adversarial, repetitive, and often produce a myriad of irrelevant and inadmissible witnesses statements. I’d confirm that the parties believe my review is the best use of my time.
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  • Friday, January 09, 2026 1:14 PM | John Feerick
    I had a sensitive arbitration years ago where the key and most important witness had died and his deposition transcript was offered and accepted in evidence and became determinative in terms of the outcome. A motion to overturn my award, not for that reason, was denied by the federal court in the Eastern District of New York. The arbitration award, embodied in a judgment, was prcedent setting.
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  • Friday, January 09, 2026 1:22 PM | Geoffrey BH
    "There's no art
    To find the mind's construction in the face:" - Duncan.

    I would prefer to avoid the expensive farce of a Hearing.

    I used to enjoy letting Counsel do my work for me. but I admit to being lazy.
    Arbitration, to be fair and just, must be objective. An arbitrator should not be swayed by theatre. Ergo, written (or perhaps real) evidence and argument are not merely acceptable but the safest way to achieve not merely objectivity, but also to avoid perversion of justice by such as the late George Carman QC(*sic*).
    that said, I would prefer all questioning to be conducted through the arbitrator(s) - but that's another debate.
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  • Friday, January 09, 2026 1:25 PM | Michael Seng
    Use of transcripts in lieu of live or video taped testimony, if fully consistent with ADR’s goal of economy, efficiency and speed. Live is preferred.
    Link  •  Reply
  • Friday, January 09, 2026 1:30 PM | Steve Guttell
    If there is no transcript of the entire hearing, the testimony of an unavailable witness may be afforded disproportionate weight. Unlike live testimony, which the arbitrator must recall from memory, transcribed testimony can be reviewed multiple times, potentially enhancing its influence.
    Early in my career— about 40 years ago, shortly after I began practicing in Arizona—I was asked to read the transcript of an unavailable witness in a jury trial. The attorneys posed questions directly from the transcript, and I read the corresponding answers aloud. I do not recall whether the transcript was provided to the jury, but I suspect not. As a humorous aside, after my testimony there was a recess, and the bailiff informed me that the jury had a question. I told him I could not respond, only to be told that they merely wanted to know where I was from. I had recently moved from New York and am originally from Boston.
    More substantively, as noted in another comment, the ability to see a witness provides meaningful advantages, particularly in assessing credibility and demeanor. Given the relatively modest additional cost, a previously conducted video deposition would be a far superior alternative. At a minimum, I would want to understand why a video deposition was not taken.
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