Page 91 - ACTL Journal Win24

WINTER 2024 JOURNAL 90
I don’t always suffer from nightmares; I also have a recurring dream. Another federal trial. I represent the same client against the same allegations of fraud. But this time it is a civil case brought by one of the alleged victims. All that is at issue is money. For this trial, the complaint was required to spell out the fraud with particularity, including each alleged false statement. Then, in discovery, I deposed every meaningful witness. I learned how their testimony was helpful and how it was damaging. I learned the holes in their testimony. I previewed areas of potential cross-examination. At trial, I am prepared. There are no surprises. I know the questions to ask and the witnesses to call. Through cross-examination and presentation of my own witnesses, I prove what is needed. I sum up with confidence and the jury quickly finds in favor of my client. I wake with a smile, refreshed, ready to start the day.
TIME TO WAKE UP
My nightmares and dreams are not fantasies, they are reflections of the striking dichotomy between criminal and civil practice, nowhere more glaring than the possibility of pre-trial depositions. Compare Federal Rule of Civil Procedure 30 with Federal Rule of Criminal Procedure 15.
Civil Rule 30 encourages depositions as a critical part of the truth-seeking process: “A party may, by oral ques- tions, depose any person, including a party, without leave of court . . . “ Criminal Rule 15 does the opposite. Depositions are not permitted except in the rarest instances: “A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circum- stances and in the interest of justice . . .”