Video Expert Testimony: Using Novel Courtroom Tools to Your Advantage

Edward Maggio, J.D., M.S.

Written by
— Updated on June 25, 2020

Video Expert Testimony: Using Novel Courtroom Tools to Your Advantage

Trial advocacy is a dynamic mix of law and storytelling. It requires a lawyer to know both the intricacies of law and strategies for effective jury management. In the pursuit of winning cases and effectively arguing a client’s case, video can be a powerful courtroom tool for driving home important points.

Juries for contemporary trials often observe testimony for days on end, making video deposition an engaging alternative to traditional expert testimony, assisting the jury’s understanding of complex concepts.

Videos Make Exhibits Easier

Whether you’re litigating a complex medical malpractice claim or the reconstruction of a high-speed car accident, a video of expert witness testimony is a valuable and reliable aid for a trial argument.

An expert witness’s deposition video presented alongside printed aids and deposition transcription together create a highly persuasive experience for a jury. It’s far easier for jury members to listen to video and follow along with additional exhibit materials such as printed testimony or even charts or maps placed near the video screen. Making the jurors active in the process can increase their level of understanding and information retention.

Combining printed materials with video testimony can carefully highlight principle case arguments and create a powerful presentation for a jury. Imagine a scenario in which an expert witness testifies on the cancer-causing properties of a complex chemical floor cleaner which may have caused a plaintiff’s cancer. As the expert witness’s video deposition plays, the jury can follow along with a print out of the expert witness’s testimony. Then imagine the TV shows a split screen of floor cleaner bottles and the chemical components on one side and  portions of the expert’s testimony transcript on the other. The video zooms in on the testimony as the expert opines on industry standards for including a “warning on all bottles.”

Video Depositions Save Parties Money

Expert witnesses, particularly those who are actively-practicing medical personnel, may not always be available for in-person testimony.  In these cases, a video deposition can save a attorney a significant amount of money.

For example, imagine a university professor has to fly cross country to testify about the causation in an industrial poison incident. In order to appear in person, they have to shut down their lab operation for a few days and make a costly trip to another state. These logistical challenges incur major costs for a litigator trying to secure key expert testimony.

Alternatively, the expert’s entire journey to testify could be condensed into a three-hour process by testifying via video instead. Video deposition makes valuable expert witnesses accessible to litigators without breaking the bank.

Notice Requirements Regarding Video Depositions

The use of video depositions by expert witnesses is not without rules. Video depositions presented during trial are subject to notice requirements under Federal and State Rules of Civil Procedure.

In Federal Court, a party must provide a transcript of any deposition testimony a party offers per Rule 32(c) of the Federal Rules of Civil Procedure. Furthermore, Rule 32 allows a party to use a deposition against an adverse party if the party was present or represented at the deposition, had notice of the deposition, would be admissible under the Federal Rules of Evidence, and meets one of the Rule 32(a) requirements.

Previously, Federal Courts have allowed video deposition excerpts in opening statements. However in one case, Northfield Ins. Co. v. Royal Surplus Lines Ins. Co. (C.D. Cal. July 7, 2003), a party brought a motion in limine to exclude the use of a video deposition during opening statements. The court allowed the video deposition because Rule 32(a)(2) states a deposition can be used for “any purpose”. Thus, the opposing party’s conduct was factually relevant and could be alluded to in their opening statement.

In another case, the court ruled a video deposition testimony inadmissible. The court’s reasoning was that the deponent was also going to testify at trial in person. Thus, under Federal Rules of Evidence 403, this would be cumulative testimony per Beem v. Providence Health & Servs. (E.D. Wash. Apr. 19, 2012). This ruling also highlights the importance of  ongoing negotiations between parties to set up evidentiary ground rules and minimize any potential future challenges.

Is An Expert Video Deposition Right For Your Case?

There are, of course, pros and cons to video deposition but, attorneys would be remiss to simply write video off as a tool for trial. For the best chance of a trial win, remember to consider all your resources for effective argument and be sure to consult a well-rounded expert witness who has experience providing video-based testimony for legal matters.

Leave a Reply

Your email address will not be published.

I am an