On the Record

Best Practices for Using Depositions at Trial

The law favors the presentation of live witness testimony at trial. Just because a party takes a deposition does not mean it can be used at trial, and even if it can be used it may be only for limited purposes, or under certain circumstances. The purpose of this article is to discuss the many ways that depositions can be used in the trial of a civil case, including uses for proof, impeachment, to refresh recollection, with unavailable witnesses, experts, adverse parties, for completeness and offers of proof. The Tennessee Rules of Civil Procedure (TRCP) and Tennessee Rules of Evidence (TRE) govern the circumstances and purposes for which depositions can be used. Although our focus is on the use of depositions in civil trials, many of the same general principles can apply to criminal cases,[1] to the limited extent depositions are used at trial, and to administrative proceedings, arbitrations and other forms of ADR if the use of depositions is governed or guided by the rules of evidence and procedure.[2]

The Common Requirements

TRCP 32.01 contains two basic requirements for the use of deposition testimony. The first follows from the language of the rule that provides: “any part or all of a deposition, so far as admissible under the Tennessee Rules of Evidence applied as though the witness were then present and testifying, may be used.” The point is that the deposition testimony must be admissible under the rules of evidence. This principle is reinforced in TRCP 32.02, which states that the same objections that could be raised if a witness is testifying live can be made at a hearing or trial in which deposition testimony is offered. Thus, considerations such as competence, relevance, undue prejudice and hearsay apply, and just because something was said in a deposition does not mean it can be introduced at trial. For example, a hearsay statement for which there is no exception cannot be introduced at trial through a deposition for the same reason it could not come in if the witness was testifying live.

With this in mind it is essential to plan in advance for evidentiary objections that may be raised by your adversary at trial. Play the devil’s advocate and think through all of the objections that you would raise if trying to exclude the testimony and be ready to counter those arguments. Keep in mind that some objections may have already been waived. Under Rule 32.04 certain objections, such as to the form of the question, are waived unless made at the time of the deposition. A party intending to use deposition testimony at trial may also consider filing a motion in limine, in advance of trial, requesting a ruling that the testimony at issue is admissible. If the applicable rule or law supports your position, it makes sense to give the court adequate time to calmly consider your client’s position, rather than hoping the judge makes the correct ruling in a split second decision made in response to an objection lodged during the hurly-burly of trial.

The second requirement of Rule 32.01 is that depositions may only be used against a party who was present or represented at the deposition or who had reasonable notice of the deposition. This will not be a concern if the deposition is being used against a party to the suit who was given proper notice of the deposition, regardless of whether their counsel attended or participated. The most common instance where this rule becomes an issue is where a deposition is taken before a person or entity was made a party to the suit, or where the deposition was taken in another case that did not involve all of the same parties. In those instances the deposition can only be used against parties who had an opportunity and similar motive to develop the testimony during the prior deposition.[3]

Assuming the general requirements of the first paragraph of TRCP 32.01 are met, we look to the remainder of the Rule and the Tennessee Rules of Evidence to explore the circumstances in which depositions can be used at trial.

Impeachment

The theory of impeachment by prior statement is that a witness who offers testimony inconsistent with a prior statement may lack credibility. Depositions are a type of prior statement that can be used for the impeachment of party or non-party witnesses. This ties in with TRCP 32.01(1), which provides: “[a]ny deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.”

TRCP 32.03 states that a party does not make a person the party’s own witness by taking the person’s deposition. However, the rule does say that the party introducing the deposition testimony at trial does make the deponent their witness unless the deposition is that of an adverse party or offered for impeachment. Can you impeach your own witness using a deposition? Yes, TRE 607 tells us that the credibility of a witness may be attacked by any party, including the party calling the witness.

The general rule is that a prior inconsistent statement is admissible only for impeachment purposes and not as substantive evidence “to prove the truth of the matter asserted” unless some other rule permits substantive use.[4] Pursuant to TRCP 32.01(2), which is discussed in detail below, an adverse party’s deposition testimony may be treated as substantive proof. TRE 803(26) also permits a witness’s prior inconsistent statement that was given under oath to be treated as substantive proof when the witness is subject to cross examination at trial and the statement is otherwise admissible under TRE 613(b).5 Rule 803(26) requires the party seeking to have the statement treated as substantive evidence to request a hearing out of the presence of the jury to determine that the prior statement was made under circumstances indicating trustworthiness in order for it to be used as substantive evidence.

So how does one properly impeach using prior testimony? One technique utilizes the “Three Cs” — commit, credit and then confront.6 In the example below the method is used during the cross-examination of a witness who has testified on direct examination inconsistent with his deposition testimony. The approach can be modified as necessary.

First the lawyer commits the witness to the statement made at trial that is inconsistent with the witness’s deposition testimony.

Lawyer: Mr. Smith you testified earlier today that you overheard Mrs. Dent say at the scene that the accident was her fault.
Witness: Yes.

The lawyer then credits the witnesses’ prior testimony by emphasizing the significance of the circumstances of the prior statement.

Lawyer: Now Mr. Smith, isn’t it true you previously testified about this case in a deposition?
Witness: Yes.
Lawyer: And your deposition was taken over two years ago, not long after the accident happened?
Witness: Yes.
Lawyer: There was a court reporter present who recorded your testimony?
Witness: Yes.
Lawyer: And just like today, you raised your hand and took an oath to tell the truth before testifying in the deposition?
Witness: I did.
Lawyer: And did you tell the truth?
Witness: Of course, yes.

The witness is then confronted with the impeaching testimony.

Lawyer: Now Mr. Smith, you have been handed a copy of the transcript containing your sworn deposition testimony.
Witness: Yes.
Lawyer: Could you turn to page 14 and look at line 7?
Witness: Yes.
Lawyer: At the deposition you were asked, “Did you ever hear Mrs. Dent say anything about how the accident happened or anything about who was at fault?” and your answer starting on line 11 was “No, I never heard her say anything.” Did I read your sworn deposition testimony correctly?
Witness: Yes.

The noted trial advocacy professor and author James McElhaney suggests that Federal Rule of Evidence 613 offers an alternative to the litany required by the “Three Cs” or a similar approach where the witness is shown the transcript when initially asked about the impeaching testimony.[7] Like its federal counterpart, TRE 613 permits counsel to examine a witness concerning the prior statement without first showing its contents to the witness. The Advisory Commission Comment states: “The rule eliminates any necessity of showing an inconsistent writing to a fact witness under impeachment attack.” In other words, the text of the rule suggests that if the witness testifies at trial that the light was red, the witness can be asked to admit that he testified in his deposition that it was green before the deposition testimony is read or displayed. If the witness denies making the statement, then the transcript or video excerpt can be utilized to complete the impeachment. Under TRE 613 examining counsel does have to disclose the statement to opposing counsel if requested. Keep in mind that while the rules permit this alternate approach, it may not have the same impact on the jury as the traditional approach and is a departure from what many judges may expect or demand, based on their own training and trial experience. Thus, the safer route may be to use the traditional ritualized approach.

When properly done, impeachment can be a powerful tool. In addition to damaging the credibility of the witness in the eyes of a jury, it can be used to show the witness that you are in control of the cross-examination and not to depart from his prior testimony. If a witness is effectively impeached early in the cross examination he is less likely to stray from his deposition testimony or attempt to embellish if he knows he will immediately be confronted with the prior statement and made to look untruthful.

Do not attempt to impeach on a trivial or insignificant point. It will come across as petty, unfair and will backfire on the attorney. It is also a mistake to ask the witness whether “they were lying when they gave their deposition or are lying now,” after the contradiction is exposed at trial. The question is argumentative and rarely, if ever, will a witness admit to lying under oath. It is also folly to ask the witness to explain the contradiction raised by the impeachment with a question such as: “Mr. Smith, why is it you previously testified that you didn’t hear my client say anything and then today you testified that she admitted the accident was her fault?” Fight this urge! First it reemphasizes the testimony you are trying to discredit. Secondly, it cedes control of the examination to the witness and invites them to offer an explanation diminishing the contradiction. Save the point for closing argument when the witness is long gone from the stand.

Refreshing Recollection

By the time a case goes to trial a witness’s memory may need to be refreshed or revived. TRE 612 recognizes the long-standing practice allowing the trial lawyer to use writings to refresh the memory of a testifying witness while on the stand.[8] The rule requires the examining lawyer to lay a foundation to establish the witness’s memory needs refreshing, show the witness the writing, take back the writing, and then ask the witness to testify from their refreshed memory.[9]

Can a deposition transcript be used to refresh memory? Of course — it is a writing and in many respects more ideal then other documents that might be used to refresh recollection.[10] After all, the deponent was under oath and subject to cross-examination at the time of the deposition. Professor McElhaney suggests that you can even use one witness’s deposition transcript to refresh the recollection of another witness.[11] After all, TRE 612 does not specify that the writing has to come from the witness. The rule “applies to any writing used to refresh a witness’s memory, irrespective of who prepared the writing, when it was prepared, or whether the witness had even seen the writing until the moment of testimony.”[12] The writing itself need not be admissible to be used to refresh the witness’s recollection and the refreshed recollection is the evidence, not the writing. However, keep in mind that when using a deposition to refresh recollection, TRE 612 permits the adverse party to cross-examine the witness with the document and introduce into evidence those portions of the writing that relate to the testimony of the witness.

The Use of Adverse Party Depositions ‘for Any Purpose’

TRCP 32.01(2) permits a party to use the deposition of an adverse party “for any purpose.” The Rule also applies to the use of the deposition of anyone, who at the time of their deposition, was an officer, director or managing agent[13] of an adverse party corporation, proprietorship, partnership, association or government agency. The Rule also extends to depositions taken of adverse party organizations pursuant to TRCP 30.02(6) and those taken upon written questions pursuant to TRCP 31.
The prohibition against hearsay found in TRE 802 presents a potential obstacle to a lawyer intending to utilize deposition testimony at trial. After all, a deposition is a collection of out-of-court statements made by the deponent, often offered at trial to prove the truth of the matter asserted, and thus, hearsay as defined by TRE 801(c). TRCP 32.01 dovetails with TRE 803(1.2), which embodies the common law hearsay exception for admissions of party opponents. This means that the deposition testimony of an adverse party, or its representatives, is not excluded as hearsay and comes in at trial as substantive evidence, and not just for impeachment. Keep in mind that if the testimony contains multiple layers of hearsay, for example the deponent testifying to what someone else said, the proponent of the testimony should be prepared to show that each layer of hearsay fits into an exception allowing its admission.[14]

So what does the rule contemplate when it says that adverse party depositions can be used “for any purpose?” Obviously the deposition can be used to impeach the witness and attack their credibility, if they testify at trial, noting again that it can also be considered substantive evidence. The deposition can also be read into evidence and displayed during the proponent’s proof regardless of whether the deponent testifies at trial and regardless of their unavailability. In fact, you can do both — call the adverse party as a witness and read from or play the video of their deposition during your proof.

There may be instances where a strategic decision is made to use the deposition in lieu of calling the adverse party as a witness. For example, the plaintiff may need to present proof that can only come from the defendant in order to survive a motion for directed verdict. Counsel may not want to risk calling the defendant live in plaintiff’s proof and allow the defendant’s counsel to examine her own client using leading questions pursuant to TRE 611. If the defendant’s deposition contains testimony helpful to the plaintiff, the plaintiff may elect to read from the transcript or show the jury portions of the defendant’s video deposition. In some instances you will never get a better answer then what was given in the deposition, and playing or reading the prior testimony makes it difficult for the witness to change or explain away their answer as they might try to do if asked the question again live at trial.

The rule also gives counsel control over the presentation of testimony. Selected portion of the deposition can be used to streamline the presentation, remove objectionable and unnecessary testimony and any colloquy regarding objections. If there is an audio or audio-visual recording, it can be edited and excerpts played for jury. In most cases playing video of testimony is much more effective than reading from the transcript. The adverse party’s deposition testimony can also be utilized during opening statements, assuming the testimony will be admissible at trial. Any portions of the adversary’s deposition testimony utilized during trial can also be used in closing argument.

Unavailability Due to Statutory Exemption, Privilege, Illness, Death or Inability to Procure the Witness’s Attendance

TRCP 32.01(3) provides: “[t]he deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that the witness is ‘unavailable’ as defined by TRE 804(a).” A party seeking to utilize deposition testimony under TRE 804(a) has the burden of establishing that the criteria for “unavailability” are met. The trial court’s determination will not be overturned absent an abuse of discretion.[15] As is the case with adverse party depositions, when a witness is unavailable, the former testimony can be used for “any purpose” pursuant to TRE 804(b)(1) and comes in under a hearsay exception and as substantive evidence.[16] A party cannot use a deposition under this exception if they procured the witness’s unavailability or engaged in wrongdoing in an effort to prevent the witness from testifying live at trial.[17]

The rule permits the use of prior testimony in instances where the witness has died, cannot attend trial due to an illness, where the witness is more than 100 miles from the place of civil trial, or where the proponent of the statement is unable to procure the witness’s attendance by process. The latter scenario can arise when the witness is outside the subpoena power of the court, cannot be found and served, or where the witness enjoys a statutory exemption from appearing in court. For example Tenn. Code Ann. § 24-9-101 exempts, among others, federal, state and local officials, practicing doctors, lawyers, dentists and chiropractors and medical records custodians from trial attendance.

The rule [at TRE 804(a)(1)] also permits the use of deposition testimony where the witness may be physically present at trial but is “exempted by ruling of the court on the grounds of privilege from testifying concerning the subject matter of the declarant’s statement.” Privilege may include a witness invoking his or her Fifth Amendment privilege against self-incrimination or the invocation of one of the many statutory privileges enumerated in the Advisory Commission Comments to TRE 501, including attorney-client, clergy-penitent or the spousal privilege. TRE 804 also permits a determination of “unavailability” when a defiant witness refuses to testify despite a court order to do so.

Unavailability: The Forgetful Witness

What about the witness who has forgotten or feigns a lack of memory? Under TRE 804(a)(3) “unavailability” includes the witness who: “[d]emonstrates a lack of memory of the subject matter of the declarant’s statement.” Once it is established that the trial witness does not remember something that he or she testified to in a deposition, “the contents of the recorded recollection” can be read to the jury.[18] In practice this is the equivalent of past recollection recorded under TRE 803(5) but specific to former sworn testimony. The rule is limited to the subject matter of which there is a demonstrated lack of memory. Thus, lack of memory on one subject does not give counsel carte blanche to read from the remainder of the deposition. It has also been suggested that counsel should first attempt to refresh the witness’s recollection utilizing TRE 612 before the court entertains declaring the witness “unavailable” due to memory lapse under TRE 804(a)(3).[19]

Proof Depositions

As stated in the Advisory Commission Comment, “Rule 32.01(3) describes when a deposition can be used ‘for proof’ under the former testimony hearsay exception. Except with respect to some experts, a deposition is admissible as substantive evidence at trial if the deponent is unavailable to give live testimony.”[20] There are times when a deposition is taken fully contemplating that it will be used for proof at trial because it is known the witness will be “unavailable” at the time of trial. The witness may enjoy a statutory exemption from trial attendance, be out of trial subpoena range, incarcerated or in poor health and unable to attend court.

The foundation for proving the witness is unavailable should be developed in the deposition since the proponent of using the deposition has the burden of proving unavailability. For example, establish that the witness plans to continue to live and work in Atlanta, Georgia, to prove she is outside trial subpoena range. TRCP 27 also provides a mechanism for the court to grant a petition permitting the taking of a deposition to perpetuate the testimony of a witness prior to the initiation of a lawsuit where there is concern that the witness will be unavailable or to “prevent a failure or delay of justice.” The author used this procedure in a case where a key witness was diagnosed with a terminal illness and passed away prior to when suit was filed.

There are times when a deposition is taken for the purpose of proof where the witness does not qualify as “unavailable” under the rules. For example a party may wish to offer expert testimony by deposition, but the expert does not meet the criteria of unavailability. In those instances counsel should take the proof deposition by agreement[21] or obtain a court order if necessary to ensure that the testimony can be utilized for proof at trial. As will be discussed below, the discovery deposition of a Rule 26 expert can only be used for impeachment, regardless of the expert’s availability at the time of trial, so you cannot count on using the discovery deposition of your own expert as proof.

Offers of Proof

When the trial court sustains an objection resulting in the exclusion of evidence, the proponent must make an offer of proof to preserve the issue for appeal. TRE 103(a)(2) provides that error may not be predicated upon a ruling excluding evidence unless the “the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or apparent from the context.” The mandatory language of TRE 103(b) says the court “shall permit the making of an offer of proof in question and answer form.” Among other methods, the offering party can utilize deposition testimony for this purpose. For example, if the court excludes a causation opinion contained in the deposition of the plaintiff’s treating physician, the plaintiff’s offer of proof should incorporate the physician’s deposition, including specific references to the portion of the transcript that is crucial for review of the issue on appeal. In addition to reading the pertinent testimony during the offer of proof, counsel should ask that the transcript be marked for identification and filed with the court so that it is part of the record and available for review on appeal.

Completeness

TRCP 32 conforms to TRE 106 incorporating the rule of completeness with respect to the use of depositions at trial. TRCP 32.01(4) states “If only part of a deposition is offered in evidence by a party, an adverse party may require the introduction at that time of any other part which ought in fairness to be considered contemporaneously with it.” This rule gives the court the discretion to require the portions of the testimony that is offered for the sake of completeness during another party’s proof. The rub is often whether the party invoking this rule is trying to exceed the scope of what is justifiably necessary for “completeness.” For example, if the plaintiff introduces portions of the defendant’s testimony discussing certain issues; that does not give defendant’s counsel license to read unrelated portions of his own client’s testimony.

Basis for Opponent’s Expert Opinions

An expert can base an opinion on facts or data that is not admissible in evidence as long as it is the type of information reasonably relied upon by experts in their field. TRE 703 allows an expert to offer opinions at trial based on information gleaned from deposition testimony.[22] However, just because the expert can rely upon deposition testimony does not open the door for the deposition testimony to be read to the jury, assuming there is no independent basis for its admissibility. Rule TRE 703, as originally enacted, prohibited the proponent of expert testimony from disclosing to the jury information relied upon by the expert that is not independently admissible. However, a 2009 amendment incorporated a limited exception allowing the disclosure of otherwise inadmissible evidence, by the proponent of the expert testimony, upon a determination by the court that the probative value in assisting the jury to evaluate the expert’s opinions substantially outweighs the prejudicial effect.[23] This language contained in the third sentence of Rule 703 provides a potential route for the introduction of otherwise inadmissible deposition testimony through the testifying expert during direct examination.

While Rule 703 still limits the ability of a proponent of expert testimony to introduce otherwise inadmissible deposition testimony through an expert, it is a different story with cross-examination. TRE 705 permits an attorney to explore the underlying basis for an expert’s opinions during cross-examination. If the expert reviewed deposition testimony, in connection with formulating opinions, then the expert can be cross-examined using the deposition testimony considered by the expert.[24]

The discovery deposition of an expert taken pursuant to TRCP 26.02(4) can only be used for one purpose at trial. Under Rule 32.01(3), which is known as the Bearman rule, the discovery deposition of an expert cannot be used at trial for any purpose except for contradicting or impeaching the expert at trial. If for any reason the expert does not testify at trial, the deposition cannot be used. So if the plaintiff’s expert bombs during his discovery deposition, makes a number of concessions favorable to the defense or there is some other reason plaintiff’s counsel decides not to call the expert at trial, no party can introduce the expert’s discovery deposition.

General Considerations and Parting Thoughts

A deposition properly certified by the court reporter is self-authenticating as a domestic public document under seal pursuant to TRE 902(1).[25] Deposition transcripts and video depositions are filed with the court, but not introduced as trial exhibits or viewed by the jury during deliberations.[26]

The law favors the presentation of live testimony; so do the jurors. When deposition testimony is offered at trial, it is generally preferable to present the testimony through edited video. There is no faster way to put a jury to sleep than reading page after page from a transcript. If the testimony is read, it should be presented using two persons, one reading questions and the other the answers while sitting at the witness stand. Another attorney, an assistant or even an actor can “play” the part of the witness as long as they stay true to the transcript.

Commercially available software is available to display exhibits and “sync” and edit video testimony. The video can be synced with the written transcript so the jurors can view the scrolling transcript as the witness testifies. This is helpful in cases where the acoustics in the courtroom are bad, the witness is difficult to understand or the precise phrasing of the testimony is significant. Clips can also be identified for quick access to play for impeachment instead of reading from the transcript. Unless the parties stipulate otherwise, the original video recording of the deposition, and the edited version used for trial, must be filed with the clerk of the court.[27] A marked transcript indicating the portions played should also be filed for the record.

Consult local rules addressing the filing and use of depositions. It is common to require parties to designate, in advance, any testimony that will be read or played at trial, other than for impeachment. This allows the opposing party to raise any objections and to counter-designate testimony, as well as time for the court to rule on the objections prior to trial. For example, Local Rule 29.01 of the Twentieth Judicial District requires 10 days’ notice of the intended use of audio or visual recordings, including depositions. Under this rule adverse counsel is also permitted to review the recording in the form to be offered at trial. If the local rules or the court’s standard pretrial order do not establish a deadline for serving designations, it is a good idea to request a deadline to insure that objections are resolved prior to the beginning of the trial, and edits can be made when video depositions are used.

Notes

  1. See Rule 15, Tennessee Rules of Criminal Procedure which addresses the taking and use of depositions in all criminal proceedings in Tennessee courts of record. While the taking of depositions is less frequent and the use much more restricted in the trial of criminal cases, Rule 15 is similar in several respects to its civil counterpart, TRCP 32, and many of the general principles and techniques discussed in this article are applicable in criminal cases.
  2. See, Yokley v. State Bd. Of Educ., 305 S.W.3d 523 (Tenn. Ct. App. 2009), recognizing that administrative law judges can look to the Tennessee Rules of Civil Procedure for guidance.
  3. TRCP 32.01 and TRE 804(b)(1).
  4. Cohen, Sheppeard and Paine, Tennessee Law of Evidence 6-142 (6th ed. 2011) citing State v. Kiser, 284 S.W.3d 227, 266 (Tenn. 2009).
  5. “Subsection (26) alters Tennessee law by permitting some prior inconsistent statements to be treated as substantive evidence.” TRE 803(26) Advisory Commission Comments [2009].
  6. A similar approach using the acronym ABC, “Accuse, Build up, and Confront” is discussed in D. Shane Reed, Winning at Trial 222 (2007).
  7. James W. McElhaney, McElhaney’s Trial Notebook 184 (3rd ed., 1994).
  8. TRE 612 Advisory Commission Comments.
  9. Ibid.
  10. State v. Montague, 1994 Tenn. Crim. App. LEXIS 757 (Nov. 21, 1994)(witness permitted to review preliminary hearing testimony to refresh recollection).
  11. James W. McElhaney, McElhaney’s Trial Notebook 189 (3rd ed., 1994).
  12. “Rule 612 applies to a “writing.” It does not prescribe who must author the writing or the source of the writing. Rule 612 applies to any writing used to refresh a witness’s memory, irrespective of who prepared the writing, when it was prepared, or whether the witness had even seen the writing until the moment of testimony.” Cohen, Sheppeard and Paine, Tennessee Law of Evidence 6-137 (6th ed. 2011).
  13. Seaboard Coastline R. Co. v. Hughes, 521 S.W. 2d 558 (Tenn. 1975) contains a discussion of the factors used to determine if a witness is a “managing agent” for the purpose of TRCP 32.01(2).
  14. TRE 805 and Advisory Commission Comments.
  15. See Hicks v. State, 490 S.W.2d 174, 179 (Tenn. Crim. App. 1972).
  16. TRCP 32.01 Advisory Commission Comments [2001].
  17. TRE 804(a).
  18. TRE 804 Advisory Commission Comment [1994].
  19. Cohen, Sheppeard and Paine, Tennessee Law of Evidence 8-163 (6th ed., 2011).
  20. TRCP 32 Advisory Commission Comments [2001].
  21. Livingston v. Livingston, 2002 Tenn. App. LEXIS 708 *17 (Tenn. Ct. App. M.S. Oct 3, 2002).
  22. Herbert v. Brazeale, 902 S.W. 2d 933, 938 (Tenn. Ct. App. 1995) and see Duran v. Hyundai Motor Am. Inc., 271 S.W.3d 178 (Tenn. Ct. App. 2008).
  23. Holder v. Westgate Resorts Ltd., 356 S.W.3d 373 (Tenn. 2011).
  24. Steele v. Ft. Sanders Anesthesia Group P.C., 897 S.W.2d 270, 278 (Tenn. Ct. App. 1994).
  25. Robert Banks Jr. and June F. Entman, Tennessee Civil Procedure § 8-7(b)(4th ed. 2015).
  26. Doochin v. U.S. Fidelity & Guar. Co., 854 S.W.2d 109 (Tenn. Ct. App. 1993).
  27. TRCP 30.02(4)(B)(IX).

Dan Berexa DAN BEREXA is a Rule 31-listed general civil mediator and partner at Cornelius & Collins LLP in Nashville with 24 years of experience in civil litigation. The focus of his practice is in the areas of personal injury, product liability, insurance law, professional liability and commercial dispute resolution. He is also an instructor at the Nashville School of Law where he teaches trial practice. He received his undergraduate degree in criminal justice from the University of Florida and graduated cum laude from the University of Tennessee College of Law in 1991, where he was a member of the Tennessee Law Review.

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