Section 9.16 Use of Pleadings and Deposition Testimony

• Library: Civil Trial Practice 2015 Supp

1. (§9.16) Use of Pleadings and Deposition Testimony

The answers to interrogatories, documents produced in response to requests for production, and admissions of a party to a lawsuit may be introduced into evidence at trial by an opposing party. Gibson v. Newhouse, 402 S.W.2d 324, 327 (Mo. 1966). Any party has a right to read into evidence an opposing party’s admissions as set forth in the pleadings even if, for instance, the answer to the interrogatory has been amended. Nolte v. Wittmaier, 977 S.W.2d 52, 60 (Mo. App. E.D. 1998).

If admissions made in the pleadings or other forms of discovery are to be used as evidence at trial, the trial attorney should attempt to educate the jury as to their significance during voir dire and opening statements. The trial attorney should also give consideration to the manner in which such evidence is presented to the jury. It is suggested that, before reading or showing such an admission to the jury, the trial lawyer should ask the trial judge for permission to explain to the jury what they are about to hear or see. The reading of pleadings should indicate that they are taken from “the official court file,” and such things as the caption and the introductory language should be read to the jury. A reading of the signature and notary language can be effective, particularly if opposing counsel has acted as notary on the pleading.

Just as any admission in the pleadings can be used as evidence, the deposition of a party may be used by an adverse party for any purpose; the information elicited does not need to constitute an “admission” in the strict sense. Parker v. Bruner, 686 S.W.2d 483, 486 (Mo. App. S.D. 1984), cert. denied, 474 U.S. 827 (1985). The general rule is that, once a party reads a portion of a deposition, the opposing party may read some or all of the remaining deposition in explanation. Myers v. Ries, 8 S.W.3d 137 (Mo. App. E.D. 1999). Although depositions given in other cases are generally inadmissible, a party’s admission in a deposition can be introduced into evidence at trial even if the deposition was not taken in the litigation at hand where there is a clear identity of issues and identity of interests between the party against whom the testimony is offered and one who was a party at the time the deposition was taken. Bergsieker v. Schnuck Mkts., Inc., 849 S.W.2d 156, 164 (Mo. App. E.D. 1993); Maturo v. Stone, 856 S.W.2d 84, 85 (Mo. App. E.D. 1993). Rule 57.07 was recently amended to provide that...