TechTalk

To Use of Not to Use Video Depositions

It’s hard to believe that less than 20 years ago, VCRs were rarely found in American homes. Today, not only are videos commonplace at home, they are becoming standard fare in the courtroom - especially video depositions.

Under Federal Rule of Civil Procedure 30(b)(2), as amended in 1993, any deposition may be conducted by videotape, subject only to notice to all counsel. Specifically, the rule states:

The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by non-stenographic means.

With the relative east of video taping, a new issue arises: Under what circumstances are video depositions preferable to the traditional stenographic deposition?

Many lawyers choose to use video depositions only for de bene esse examinations - to preserve testimony of witnesses who are not likely to be available for trial. There are, however, other instances when a wise trial lawyer will decide to use - or not to use - video depositions.

Video depositions provide the factfinder with much more than the words of a stenographic transcript. Studies have shown that jurors receive and retain information far better through both visual and aural means, rather than through hearing alone. Videos also relieve boredom and communicate information to jurors by television, the medium most familiar to Americans.

Video depositions can work well for witnesses who will reappear at trial, particularly if their appearance at trial may differ greatly from their deposition persona. A case from the early 1960s speaks to the power or being able to see how someone responds: "For the demeanor of a witness...may satisfy the tribunal, not only the witness’ testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating..."(NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962)).

Video depositions are also useful in "controlling the obstreperous witness or adversary (or both, as they often find each other), "writes Gerson A. Zweifach of Williams & Connolly in Washington, D.C. "There is something about the little red light on top of the video camera that seems to inhibit the most unruly adversaries from carrying on with their full act. Maybe it’s the fact that you can play the tape to the judge, or even better, include a few highlights for the jury," Zweifach reports in the Litigation Manual: Pretrial.

A lawyer who has a less-than-telegenic witness may prefer not to use video depositions. The goal is to have your witness leave a lasting favorable visual impression on a jury. Extended pauses, certain facial expressions, use of unnecessary verbal tics, and looking away from the camera all may convey dishonesty or create a lack of creditability.

Attorneys should also keep in mind that their own style of questioning during the deposition might become the subject of scrutiny. A written transcript does not adequately convey witness coaching or aggressive or abusive treatment by opposing counsel that can be clearly observed on video.

"Video is a powerful tool, "Zweifach states. "It can be turned against you by certain witnesses in a way that the cold transcript cannot. You can master a transcript in a way that you will never master the nuances of a videotape."