Pre-Deposition Tips: How to Prepare to Take a Deposition- Plaintiff’s Perspective

by: Prince, Glover & Hayes Monday, June 7th, 2010

Types of Depositions- Continued

Videotaping of Depositions

Videotaping of depositions has become more and more common. Typically, a lawyer will videotape the deposition of all key witnesses, including experts and parties.

While it is usually better to present a live witness, if a favorable witness is unavailable, the next best method is the use of a videotaped deposition. This applies to both lay and expert witnesses. The videotaping of depositions allows the lawyer to present the witness’ words, physical appearance, tone, manner and other nonverbal impressions. Moreover, videotaping critical witnesses (such as experts) may give you “the jump” on the defendant because of lack of preparation, especially if you have adequately prepared.

The following guidelines have been developed for producing an effective videotaped deposition:

1. Take in more than a talking head. Whenever possible, introduce objects, photographs, or other demonstrative evidence into the field of view. A competent video operator can highlight graphs, drawings and other objects in a way that keeps the video interesting for the jury. At a minimum, whenever a witness refers to or points out a critical document or item, the video operator should focus on the referenced material.

2. With discretion, get in the video yourself, at certain times. In that way, you as the lawyer personalize yourself. A new voice unattached to a face or body makes for a strange video experience. People who watch television and movies are accustomed to seeing the faces of anyone who speaks. As a corollary, make eye contact with the camera whenever you speak. Even consider addressing the judge or jury if appropriate.

3. Ensure ahead of time that the equipment and deposition room are ready and compatible. The video operator should bring backup equipment in case of failures, extra blank videotapes and various extension cords. The deposition room should be an adequate size and have properly located electrical outlets, microphones and speakerphones, if necessary. Lighting should be similar to that of a courtroom environment; that is, not so bright as to distort the witness or cause a distracting glare. Avoid windows, glass-covered picture frames, and mirrors that could create bothersome background reflections on the video display.

4. Use the backdrop to increase witness credibility. For example, the video of your doctor’s testimony should be taken in his or her office surrounded by medical books, charts and perhaps graphs. Photographs and other objects on the wall in the background should be interesting and whenever possible, ad to the credibility or presence of the witness.

5. Prepare your witness to be on camera. Clothes can be important. Similar to a trial, dresses, ties and jackets are appropriate. Even rehearse a little to make sure the witness eliminates distracting gestures or any other kind of odd behavior. The witness should be relaxed and confident. Nervousness and fidgeting look terrible on television. Most important, tell your witness to address the camera, but not to stare at it continuously. Remind the witness to never to look to you for approval, especially before or after responding to a question.

6. At times during the deposition, the camera operator should vary the angle of the shot. This makes the video more interesting and visually pleasing. Most of the time, however, the camera should be at the witness’ eye level.

7. Use lavalier microphones instead of a single microphone to record sound. A single microphone reproduces sound poorly and usually picks up distracting background noise. Lavalier microphones also allow participants to move freely.

8. Use two-hour VHS format tapes of half-inch professional quality. For best results, record at standard play (SP) speed, not extended to play (EP).

9. Recording should be continuous. This can be necessary to ensure the admissibility of the tape and sound recording if challenges are later made. Whenever parties agree to go off record, this should be unambiguous and on tape. To further ensure admissibility of the recording, include a time code on the screen or at least make sure the operator orally notes the correct time at the beginning and the end of each videotaped segment. In many states, court rules require the use of an electronic counter that depicts the time and date on the video display. Arrange to place the counter at the bottom of the screen to avoid unnecessary jury distraction.

10. Edit the tape for presentation to the jury. As with all legal editing, fairness is the standard used by the judge to determine whether editing is appropriate. Keep in mind that opposing counsel has access to the complete unedited version, so the omission of related but damaging material is usually not advantageous and will probably be brought to the attention of the judge or jury with some fanfare by your opponent. Remember that an alternative to editing exists in CD-ROM and bar code technology that instantaneously recalls specific tracks or segments of the videotaped testimony.


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