In a truck accident lawsuit, the driver of the tractor-trailer is usually a central witness. Yet by the time the case reaches trial, that driver may not appear in person. The driver may live in another state, may no longer work for the trucking company, may be ill, or may simply be beyond the reach of a subpoena. When the driver does not testify live, the parties often turn to the driver’s deposition testimony. Georgia law sets specific rules for when and how that deposition testimony may be used at trial. The process of selecting which portions to read or play is commonly called designating deposition testimony.
The governing statute
The use of depositions in Georgia court proceedings is governed by O.C.G.A. 9-11-32, part of the state’s Civil Practice Act. The statute establishes both the general conditions for using a deposition and the specific circumstances that allow the deposition of an absent witness to be presented in place of live testimony.
A foundational requirement is that the deposition may be used only against a party who was present or represented at the taking of the deposition, or who had reasonable notice of it. Because parties in a truck accident case ordinarily receive notice of, and attend, the driver’s deposition, this requirement is usually satisfied.
When an absent driver’s deposition may be used
Under O.C.G.A. 9-11-32, the deposition of a witness, whether or not that witness is a party, may be used by any party for any purpose when the trial court finds that one of several conditions exists. The conditions relevant to an absent truck driver include the following.
The witness is dead.
The witness is out of the county, unless it appears that the absence of the witness was procured by the party offering the deposition. A driver who lives in another state, or otherwise outside the county where trial is held, generally falls within this provision.
The witness is unable to attend or testify because of age, illness, infirmity, or imprisonment.
The party offering the deposition has been unable to procure the attendance of the witness by subpoena.
Because of the nature of the witness’s business or occupation, attendance cannot be secured without manifest inconvenience to the public or third persons.
The statute also gives the trial court discretion to allow a deposition to be used even when the witness is available, depending on the circumstances. The decision in each instance rests with the trial judge.
Depositions of corporate representatives
A trucking company is an organization, and it testifies through people. Georgia procedure allows a party to depose a corporation by describing the matters for examination and requiring the company to designate one or more persons to testify on its behalf. Those designations are made under the deposition rules referenced in O.C.G.A. 9-11-32. The testimony given by a designated corporate representative binds the company on the designated subjects, and that testimony may be used at trial under the same statute. This is distinct from the deposition of an individual truck driver, although in some cases the driver is also the person the company designates as its representative.
Designating and counter-designating testimony
When a party intends to use deposition testimony at trial, it identifies the specific pages and lines it will offer. This is the designation. The opposing party then has the opportunity to counter-designate, meaning it identifies additional portions of the same deposition that it contends should be presented for completeness or context. Georgia practice reflects the principle that if part of a deposition is introduced, an adverse party may require the introduction of other parts that in fairness ought to be considered together with the part introduced.
The parties exchange these designations before trial, and the trial court resolves any disputes. Disputes commonly concern whether particular questions and answers are relevant, whether they contain inadmissible material, or whether additional portions are needed for fairness.
Objections to deposition testimony
O.C.G.A. 9-11-32 preserves the right to object to deposition testimony. An objection may be made at trial to receiving any deposition or part of a deposition for any reason that would require exclusion of the evidence if the witness were present and testifying live. In other words, the same evidentiary rules that would apply to live testimony, such as rules on hearsay, relevance, and improper questioning, apply to designated deposition testimony.
Some objections must be raised earlier. Objections to the form of a question, for example, are generally required to be made during the deposition itself so that the questioner has a chance to correct the problem. Objections going to the substance or admissibility of the testimony may be raised when the deposition is offered at trial. The trial court rules on these objections, often during a pretrial conference, and the cleared portions are what the jury ultimately hears.
How the testimony is presented
Once designations are settled, the agreed portions of the absent driver’s deposition are presented to the jury. This may be done by reading the questions and answers aloud, with one person reading the questions and another reading the answers, or by playing a video recording of the deposition if the deposition was recorded by video. The jury receives this testimony and weighs it like other evidence.
Summary
Georgia litigation handles the testimony of an absent truck driver through O.C.G.A. 9-11-32. The statute permits a deposition to be used at trial when the witness is dead, out of the county, unable to attend due to age, illness, infirmity, or imprisonment, or beyond the reach of a subpoena, among other conditions. Parties designate the portions they intend to use and may counter-designate additional portions for fairness. Standard evidentiary objections still apply, and the trial court resolves designation and objection disputes before the cleared testimony is read or played for the jury.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.