M Civ JI 4.11 Consideration of Deposition Evidence

[ Members of the jury. You are now going to hear a summary of a deposition that was taken. A deposition is the sworn testimony of a party or witness taken before trial. All parties and their lawyers had the right to be present and to ask questions. The summary was prepared to more efficiently present this evidence. You are also being given a copy of the summary so you can follow along as it is being read. You are to give this evidence the same consideration as you would have given it had the witness testified in open court. ]

During the trial, [ you heard testimony from a deposition/ you were read the summary of a deposition ]. A deposition is the sworn testimony of a party or witness taken before trial. All parties and their lawyers had the right to be present and to ask questions. [ The summary was prepared to more efficiently present this evidence. ]

You are to give this evidence the same consideration as you would have given it had the [ witness / witnesses ] testified in open court.

Note on Use

The bracketed language in the first paragraph should be given if a deposition summary is read to the jury as contemplated by MCR 2.513(F).

Comment

The Court may wish to give this instruction at the time a deposition is read or shown to the jury, see MCR 2.512(B)(l), and to explain why the deposition is admissible, see MCR 2.308(A). Instructions that deposition evidence should be given the same fair consideration as testimony produced in open court have been approved. Coburn v Moline, EM & WR Co, 243 Ill 448; 90 NE 741 (1909); Pyle v McNealy, 227 Mo App 1035; 62 SW2d 921 (1933); see also 3 Callaghan’s Michigan Pleading & Practice (2d ed) § 35.104.

The 2011 amendment reflects the amendment to MCR 2.513(F) ordered by the Michigan Supreme Court on June 29, 2011, which became effective September 1, 2011. This amendment calls for the court to encourage the use of written deposition summaries in lieu of full depositions.

History

M Civ JI 4.11 was JI 2.11. Amended January 1988, September 2007, October 2011, July 2024.