The old-fashioned deposition, with the court reporter recording every word and producing a written transcript, is giving way to the video deposition, which permits a jury and judge to actually see the witness and get a feeling for his or her style and credibility that can’t be obtained by looking at a printed page. In addition, the witness’s body language, which was completely opaque in a written deposition, is now available to the jury.
Video depositions are now used in most large trials – and as much as the rules of evidence will allow, they are used both in direct testimony and on cross-examination. As a legal employment website notes, “With the prevalence of multimedia technology, video depositions are now preferred over simple transcript.”
We polled our six national trial technicians at A2L Consulting with more than 500 courtroom appearances between them for their tips on using video depositions at trial and using TrialDirector most effectively at trial.
Here are six good tips to follow:
- PREPARE DEPO CLIPS EARLY: Daniel Carey, our lead “hot seat” trial technician, suggests that it’s always important to leave a lot of lead time for preparation, if there’s some possibility that an opposing witness will say something at trial that contradicts his or her deposition testimony. Possible impeachment clips need to be created in advance, then reviewed and saved in such a way that they are able to be pulled up on the fly in the rare occasion that they are actually used in court -- usually with a witness that wasn't prepped to the best of opposing counsel's abilities.
- KEEP DEPO CLIPS SHORT: Keep deposition videos short and sweet. You run the risk of losing jurors if they are too lengthy. This especially holds true if you play them after lunch, when everyone’s attention tends to flag.
- USE THE SCROLLING TRANSCRIPT SELECTIVILY: Some attorneys think that subtitling (placing the witness’s words on the screen and scrolling down as he or she speaks) can be distracting, but, like much in the law, it depends. Seeing and hearing the words simultaneously can cause memory retention problems due to the redundancy effect. We recommend using the text only when the sound quality in the courtroom is poor, the sound quality on the recording is poor or the accent of the deponent is unfamiliar to the jury panel.
- AVOID COURTROOM OBJECTIONS: Try to get advance agreement from all parties on any depositions to be played in place of live testimony and any objections ruled on by the court before trial begins.
- LIMIT THE NUMBER OF DEPO CLIPS USED: Using video depositions for impeachment can have a powerful effect, but using the transcript for most answers is sufficient. By saving the most powerful clips for video, they do not become routine. Quality is better than quantity.
- MAKE GOOD DEPOSITION VIDEOS IN THE FIRST PLACE: Train your witness to move forward in his or her chair rather than leaning back or slouching. This form of body language has been shown to provide greater credibility and authority.