Different lawyers have different views on the pros and cons of video depositions. However, there are a number of benefits lawyers should consider when evaluating whether to use video during a deposition. Below are ten reasons why videotaping a deposition may be in your client’s best interests.
1) Videos Make Exhibit References Easier To Follow
Anyone who has ever struggled to prompt testimony from a doctor referencing microscopic slides of blood in the lungs, or the intricacies of an electropherogram, or some other complex form of testimony, already knows the value of a video capturing references to the exhibits. When a witness says, “there’s evidence of inhalation of blood in this lung slide here, here, and over here,” a video captures exactly what the witness is pointing to on the exhibit. This saves the lawyer from the arduous task of saying, “When you say ‘here,’ in the first instance, you are referring to the upper left-hand corner of the slide, just above the purple blob, and to the right of the lacy looking section?” A video provides a clear path that the jury can follow.
2) Witnesses May Be More Forthcoming
Many attorneys report witnesses are more forthcoming in video depositions than in depositions that are not videotaped. On some level this makes sense. A person may be more in tune with the idea that a fact finder will be evaluating their willingness to respond to questions in a video rather than a written transcript.
3) Videos Provide Attorneys With Valuable Witness Insights
Generally speaking, a video deposition provides both lawyers with valuable information about the witness. Namely, it can reveal how a witness will present before a jury. Some people are just naturally better public speakers than others. If a person doesn’t present well at a video deposition, they are unlikely to present well before a jury. This should inform the lawyers as they discuss a possible settlement.
4) Videos Can Be an Opportunity for Growth
Most people have not had the opportunity to see themselves testify before. In fact, with the exception of expert witnesses, most people haven’t testified before — and the first time is always the hardest. A video deposition can be considered an opportunity for growth. For the witness that is overly confident in their ability to withstand cross examination, a video deposition may humble them. For the witness who has an annoying habit, such as chewing on their hair, or clicking their tongue before every response, a video deposition can break them of such habits well before trial. A video deposition can become a valuable resource for identifying behaviors to change or eliminate during trial preparation.
5) Videos Provide More Than Words
As humans, we evaluate not only a person’s words, but also how they present themselves. A video deposition demonstrates an expert’s demeanor, eye movements, fidgeting, and other behaviors that help to determine truthfulness. A video deposition is filled with far more information than simply words on the page.
6) Videos Record What Is Going On Behind The Scenes
In addition to the opportunity to evaluate a witness’s body language, a video allows the fact finder to observe other information not recorded in a paper deposition. If a lawyer is signaling their client, either with a loud cough, a shake of the head, or some other behavior, the video captures that. If a witness being deposed looks to their lawyer for an answer, rather than providing one without seeking a hint from their lawyer, this, too, is valuable information for the finder of fact.
7) Videos Provide More Effective Impeachment
A video deposition provides the fact finder the opportunity to compare like with like. The fact finder can evaluate the expert’s demeanor and tone in the video deposition and compare it to the expert’s live testimony. This additional context can lead to conclusions of inconsistent testimony. Video deposition impeachment is also far more likely to keep the fact finder’s interest than a recitation from a deposition transcript.
8) No One Wants to be Read to
Introducing regular deposition testimony into the record at trial is a mind-numbing process. No one likes being read to, particularly during complex litigation dealing with product liability or medical malpractice or other issues that require a great deal of thought on a subject unfamiliar to the fact finder. (See also, Reason # 1, Videos Make Exhibit References Easier to Follow.) Video depositions are far more interesting to the average juror.
9) Video Depositions Can be Cost Savers
In some cases, a video deposition can save a litigant a significant amount of money. For example, if a doctor in Louisiana has to shut down his practice for three days to fly to Minnesota to testify about a rare medical condition, that will cost the party calling the doctor a significant sum. If the doctor is instead allowed to testify by video deposition, this three-hour process will cost considerably less, thus making the witness accessible to a party without breaking the bank.
10) Video Depositions Resolve Cases
Witnesses participating in video depositions aren’t the only ones who are aware of the camera. Anecdotally, it appears lawyers are better prepared for video depositions. They, too, know they are on camera, and the deposition may play before a jury or judge. Wanting to be seen in the best light possible, it makes sense attorneys may choose to spend more time preparing for a video deposition. When the lawyers are better prepared, and the witnesses are more mindful of their testimony, a more complete record is established. With more facts clarified and fleshed out, the attorneys have a better opportunity to evaluate the strengths and weaknesses of their case. In addition to evaluating the facts of the case, the lawyers on both sides have a better understanding of the ability of each witness to testify in a clear and convincing manner. This often leads to earlier and more productive case negotiations.
Is A Video Deposition Right For Your Case?
Of course, there are pros and cons to video depositions. However, attorneys would be remiss to simply focus on the cons of video depositions without giving serious consideration to the benefits.