Rule 43.Taking of testimony

Rule 43 covers the mechanics of putting evidence before the court once a case reaches trial or a contested motion. As a baseline, witness testimony at trial is taken orally in open court, but the rule now allows remote testimony with appropriate safeguards if the parties agree and the court approves, or if the court finds that permitting it serves the just, speedy, and inexpensive resolution of the action. In deciding that question the court can weigh whether the witness is under a trial subpoena, whether any party or the witness would be prejudiced, whether the witness has the technology needed to be seen and heard, and whether the court can facilitate it, and a party who wants to use remote testimony generally has to give notice at least ten days before trial. When two attorneys share one side of a case, only one of them may examine or cross-examine a given witness from start to finish, including handling the objections and offers of proof tied to that witness.

Several subsections deal with how facts get established outside live trial testimony. Oaths are administered by the judge, individually to each witness, except in ex parte civil proceedings or default divorce cases, where the court sets its own practice, and an affirmation can always substitute for an oath. On motions, the court can decide disputed facts on affidavits, or direct that the matter be heard wholly or partly through oral testimony or depositions, and oral testimony on a motion may itself be given remotely. Applications for an injunction, a motion to dissolve one, or a motion to appoint or discharge a receiver come with their own notice requirements: the notice has to say what kind of evidence will be used, affidavits have to be served at least three days ahead if that is the chosen method, and oral testimony at such a hearing needs the court's advance permission plus three days' notice to the other side, though none of this reaches applications for restraining orders or temporary receivers.

The rule gives a party the right to call an adverse party, or an officer, director, or other managing agent of an adverse corporate or associational party, as a witness, with attendance compelled by notice rather than a subpoena, and trial attendance notices due at least ten days ahead. Having already deposed that person or served interrogatories does not stop a party from also examining them at trial, and admissions made along the way in interrogatory answers, depositions, or trial testimony are not treated as conclusively established, they can still be rebutted. A party or managing agent who refuses to attend and testify risks having pleadings stricken and judgment entered, on top of ordinary contempt exposure, though nothing in the rule forces self-incriminating testimony, blocks the use of an actual subpoena, or displaces the sanctions available under Rule 37.

The remaining subsections are narrower but still practical. An attorney who takes the stand and testifies on the merits of the client's own case cannot then argue that case to the jury without the court's permission. A certified transcript can prove what a witness said at an earlier trial or hearing when that testimony is admissible at a later one, and on the retrial of a case that was tried to the court alone, the earlier verbatim testimony can, with court approval on ten days' notice, stand in for live testimony at the second hearing, without cutting off either side's right to offer additional testimony or to cross-examine on the earlier record. Finally, the rule requires the court to let jurors submit written questions for witnesses, with counsel getting a chance to object outside the jury's hearing, and the court retains discretion to rephrase or decline to ask a particular juror question.