I'm appealing a Judgment by the lower court against me, and I'm now going to file a reconsideration an Appellate Court. In my filing, can a reference what a witness said at a deposition, even though that deposition testimony was never confronted with testimony at Trial in lower court? I won't be submitting pages, I just want to reference what a witness said at deposition.
If the judgment was entered following a contested trial, but the deposition was not read into the record during the trial, nor was used to impeach the witness, it cannot be considered on appeal. The purpose of an appeal is to demonstrate that the trial court committed error based upon the evidence that was presented, not the evidence that should have been presented.
If you never confronted any witness with the deposition and the portion that you intend to use was not read into evidence In your case in chief, then you cannot use it in an appeal. Courts of appeal are courts of limited jurisdiction and their review of a case, either on appeal or by certiorari, is limited to the record and the evidence admitted or used in the case below.
In general the only things considered on appeal are those found in the Record on Appeal. The Record on Appeal will include any pleadings in the case, the transcript of the court proceedings and the exhibits introduced at the hearing or trial. Things that are not in the Record on Appeal cannot be considered by the appellate courts.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline