Litigation Secret Weapon #7: Video Depositions

Although the costs keep dropping and benefits keep rising, lawyers fail to fully exploit video depositions.

Unlike a standard deposition, in which the questions and answers are merely recorded and reduced to a transcript, a videotape deposition fleshes out the witness's testimony and credibility while more profoundly engaging jurors' decreasing attention spans.  

Video Depositions' Costs and Benefits

 While more expensive and requiring greater preparation that a traditional deposition, video depositions capture and yield vastly more.  

First, beyond the testimony's content, video depositions catch the witnesses' tone of voice, appearance, and body language.   Thus, even the most damning testimony can be diffused by an inadequately prepared witness who speaks poorly, is dismissive (shrugs, rolls eyes, distracted/fidgety) or is unappealing.   

Second, video depositions favor the questioning lawyer.  A well spoken attorney offering well framed questions is often more compelling and persuasive than the most responsive of answers.

Third, video depositions muzzle obnoxious and unethical lawyers.  Unlike a transcript which fails to reflect shenanigans like rustling papers, sarcasm, eye-rolls and improper witness coaching, video captures everything.  As sunlight kills vampires, video depositions defang the most bullying attorney.   

Fourth, unlike an official transcript which requires days/weeks to transcribe, video deposition are immediately available in a digital form and easily provided to a client.

Fifth, video depositions better engage and persuade judges and juries.  In information age comprised of constant sensory bombardment and rapidly deteriorating attention spans, reading a deposition transcript into the record is just not compelling.   In the ongoing fight for a fact finder's attention, video depositions defeat oral transcripts every time.  

Video Deposition Strategy

Even more than with traditional depositions, video depositions hinge on witness and lawyer preparation.   Although the rules for taking or defending a pretrial video deposition mirror those for oral-only deposition, failing to prepare for the nuisances of video can be a critical error.

1. Appearance 

Many witnesses and attorneys neglect to adequately groom or dress for a video deposition.  Because the video may be shown at trial, both the witness and lawyer should avoid appearing casual and, instead, be "trial handsome": dressed appropriately, well groomed and composed.

2. Behavior 

Like at trial, video deposition witnesses are on display with the most powerful of spotlights shining upon them.   

Because behavior, body language and demeanor are under intense scrutiny, any "eye-roll", "gum chewing" or cell phone glance can profoundly undermine the witness' credibility or testimony's value.

3. Presentation

Because testifying is public speaking, no excuse exists for failing to prepare the information's presentation.  

While not every deponent can achieve "riveting", a weak tone of voice or poor cadence in responding to questions can shade the witness as disinterested, evasive or angry.