A Two-Edged Sword: The Danger and Potential of Video Depositions
Videotaped depositions present dangers that have created new trial strategies. If the trial team is slow to react or fails to recognize these dangers, the case can be seriously and unnecessarily damaged at trial.
Depositions have been around forever, but most lawyers remember the day when there was no videotaping during a deposition. When videotaped depositions were first introduced, the practice was not widely used and most lawyers believed it was an unnecessary expense. Today that has changed. Videotape depositions are much more the norm and the focus has become not just what the witness says under oath but also how the witness comes across to the camera, and ultimately to the judge and jury. Many attorneys are viewing and preparing to use the videotaped deposition as trial testimony and not simply discovery for the case. This has changed the rules for preparing a witness for his/her videotaped deposition.
Videotape has changed the power of the testified word and many times has changed the meaning of “no” to “yes.” Jurors are now not only evaluating the sworn testimony, (i.e. the literal words), but also the credibility of the witness as he/she utters those words in front of the camera. The danger is clear: A witness can say one thing, but a judge or jury will believe completely the opposite based on the way the witness says it. For example, we have seen many jurors adopt the following logic in evaluating videotaped deposition testimony: “He testified that he did not commit the act but I did not believe him because he looked shifty, unkempt, and evasive.” Thus testimony simply denying an act actually becomes evidence that the witness did in fact commit the act!
Because the courts are increasingly allowing the use of videotaped depositions for any purpose, there has been a dramatic change in how depositions are taken and the way deposition testimony is used at trial. Additionally, the use of computer software and super fast hard drives has allowed access to the videotaped deposition within seconds. This has opened up the deposition practice to a new spectrum of risks and benefits.
Kennedy – Nixon Debate
We should have been prepared for the inevitable impact of videotaped depositions. Why? We need only to look back 50 years to what some people think changed the way political campaigning was done and altered our country’s history. Recall the famous Nixon/Kennedy debate. It took place back in 1960 and was the first debate ever to be televised. This debate put to rest the notion that it only matters what you say and not how you look saying it.
On September 26, 1960, John F. Kennedy was a relatively unknown senator from Massachusetts, engaged in a presidential debate with a very seasoned and powerful opponent, then Vice-President Richard Nixon. Most people thought Kennedy had little chance against the more experienced Nixon, but at the end of the televised debate, it was Kennedy who was the star and it was the dynamics of television that catapulted Kennedy to the presidency.
Nixon came into the debate confident and extremely well prepared to debate the issues. Unfortunately, the Nixon team did not consider the television coverage to be an issue and Nixon himself thought the idea of putting on makeup before the television broadcast was ridiculous. As a result, he looked sweaty and the lights beamed off his forehead, giving the impression that Nixon was nervous and unprepared for his younger challenger.
Kennedy, on the other hand, realized that understanding the issues was critical but how he was going to be seen and perceived by the audience was equally important. Kennedy seized the opportunity of the television coverage and started by wearing a dark suit, a white shirt and television makeup that accented his skin tone and was perfect for black and white TV. Kennedy practiced standing in a relaxed posture and continued to look into the camera even when Nixon was speaking. Nixon, on the other hand, looked uneasy standing and continued to wipe away sweat from his upper lip. Nixon was caught several times by the cameras scowling at Kennedy with what is classically known as the shifty “Nixon eyes.”
As the story goes, people who listened to the debate over the radio thought Nixon won the debate but those who watched the debate on television thought that Kennedy had won. The impact that television has had on politics is undeniable and that same impact is becoming more evident with videotaped depositions. There are lessons that can be learned from the 1960 Nixon/Kennedy debate and can be used in the legal arena today. Those who fail to heed those lessons put their case in harms way.
Unleashing the Power of Video Depositions:
Taking the Deposition
Effective courtroom lawyers are taking the videotape deposition to the next level. The most astute lawyers are not only taking discovery for their case, but they are building a library of sound bites to be used at trial. This arsenal is loaded and can have a devastating impact on the witness and the case when used at trial.
Shooting a deposition from a side camera view can make the witness look shifty and evasive, even when the witness is trying to give his most honest recollection. The lawyer defending the deposition should insist that the videographer set up his tripod and camera directly behind the deposing lawyer and shoot the deposition video from over the deposing lawyer’s shoulder (over the shoulder camera shot). This puts the camera lens directly in front of the witness and frames up the witness in the video, similar to a television newscast and captures the witness most naturally speaking directly into the camera.
The lawyer who is defending the deposition must make sure the witness is kept in the camera frame during the videotaping. The lawyer should ask for a monitor to easily observe how the witness is being recorded. We have seen videotape where it almost looks like the witness is avoiding the gaze of the camera, but in fact the videographer was simply asleep at the switch. The impact was significant and adverse to the witness.
Many times defense witnesses believe that they should not give their side of the story during the deposition unless they are asked that very specific question. There may be good reasons to withhold an important explanation, but if the case is taken to a jury and the videotape deposition is void of the client’s position, the defense can be hindered. Taking a few minutes at the end of the deposition to ask some seemingly self-serving questions to develop a few choice sound bites and allow the client to credibly explain his/her position can prove to be very useful at trial.
5 Tips for Witnesses During a Video Deposition
Here are some tips that the trial team must always keep in mind during IP cases:
- Witnesses often believe that they are in control of the situation. For high-level executives that can be the kiss of death. Witnesses must understand that they cannot control the lawyer and must answer the questions posed to them. Witnesses do have control over some things but the topics covered are not one of them.
- Witnesses stare at their own lawyer after a question has been asked. This type of conduct makes the witness look evasive and unwilling to answer the opposing lawyer’s questions truthfully.
- Most witnesses speak too quickly and begin answering before adequately thinking about the nature and substance of the question. Witnesses must be taught and must practice the art of pausing, formulating the answer, then delivering the answer and then stopping. The “running off at the mouth” has destroyed many a case and provides a treasure trove of information that otherwise would not have been disclosed during the deposition. Witnesses must become comfortable with silence, which most people are not.
- We have seen witnesses rocking in their seats, swiveling around in their chairs and/or staring up at the ceiling trying to formulate their answers.Witnesses must be counseled and many times trained to avoid these body language cues that can raise red flags to the jury. Projecting a confident outward image while being put under pressure in the deposition can produce huge dividends for the witness and the case.
- Witness must be prepared, especially under the bright lights of a video deposition. Make sure the witness has seen the critical documents prior to the deposition so he/she can be prepared to answer questions regarding those documents. This is particularly true of any emails or letters sent by or sent to the witness that could be “spun” either for or against your client. All witnesses should go through a witness prep session, where a lawyer asks the questions like the opposing lawyer so the witness gets a clear understanding of what the deposition experience is going to be like. Many a witness has wilted under the pressure of the deposition when the opposing lawyer shifts from the initially friendly questioner to the antagonistic accuser style that some attorneys employ if they believe they can rattle the witness.
Using the Videotape at Trial:
The Playback Effect
How the videotape designations are played back at trial can vary. Some courts require that the designations and counter-designations be consolidated and played in chronological timeline order, such as in Texas. That approach benefits the defense because it is allowed to load counter-designations around the plaintiff’s designations to keep the testimony in context and prevent the plaintiff from creating a distorted picture of the testimony. To resolve this situation, build context into the questions you ask at the end of the deposition. Make sure your witness is prepared to answer the questions effectively and persuasively so later at trial the jurors will clearly understand his testimony and the meaning to the case. This can have a meaningful effect on the jury and can dissuade the plaintiff from using the video at trial.
Using a Jury Consultant in Witness Preparation
There are several good reasons to use a jury consultant during the preparation of a witness prior to his/her deposition. First, we look at the natural communication style of the witness as well as the content. In other words, we can help with not only what the witness is saying, but also how that witness is communicating the information. This way the lawyer can have confidence that the witness will not only say the right things during the deposition but communicate those messages confidently and persuasively. Second, many times witnesses have a difficult time hearing critiques from their own lawyer about how they need to behave or communicate in connection with issues that the lawyer sees as problematic. An experienced jury consultant can say things to the witness (i.e. the powerful CEO) that many lawyers are reluctant to say, and frankly should not say, because of potential damage to the important attorney-witness relationship.
Third, the consultant can use videotaped practice sessions to identify and expose potential communication flaws. Then, by reviewing the videotape with the witness, we can convince the witness of the problems and equip the witness with a variety of communication tools to answer truthfully and persuasively, avoiding the questioner’s traps.
Videotaped testimony is becoming more and more of a game changer in jury trials. The visual appearance and manner of the videotaped witness and the way he/she answers the questions can be as important as the legal substance of the answers. The bottom line is make sure your witness is prepared both from a substantive standpoint and a communication standpoint to be videotaped. This will provide the witness with the best chance for success in both the deposition process and in the subsequent trial.
For more than two decades, my firm has worked with attorneys across the country on a broad range of complex litigation, including all types of IP cases. I would welcome the opportunity to talk with you about the competitive advantages of jury consulting.
Mark T. Gerard, M.A.
President, The Litigation Group