Corporate Representative's Role and Testimony at Trial: When to Consider Appearance-Only Representatives

Description

Parties that are entities typically have a representative present at trial: (1) to put a human face on the entity; (2) to assist counsel; and (3) to hear the testimony of the opposing witnesses since this person is exempt from the rule of sequestration.

This "appearance" corporate representative often has no or marginal knowledge and/or involvement in the events being litigated. Other times, the appearance representative may also have been deposed as a Rule 30(b)(6) representative.

When an appearance representative is called to testify at trial, it is unclear whether the witness is testifying only from personal knowledge as an appearance representative or as a 30(b)(6) representative. The answer drives the scope of examination at trial and whether prior testimony will be admissible. Opposing counsel may seek to call the representative as an adverse witness to force admissions that the witness knows nothing about critical facts.

Both sides have strategic decisions to make regarding how to treat and deal with a corporate representative at trial. Trial counsel should take steps to prepare for and deal with multiple scenarios based on what opposing counsel does. To assess these strategies, counsel should be familiar with, among other rules, Federal Rule 32.

Listen as this panel discusses strategies for dealing with the differences between the "appearance" representative and the corporate Rule 30(b)(6) representative.