By Michael A. Vercher, Christian & Small Partner
Recent studies show that jurors rely heavily on nonverbal communication like eye contact and body language to judge the veracity of a witness. In response, savvy litigators are using with greater frequency a powerful discovery tool, the video deposition. In addition to the “standard” rules applicable to the traditional stenographically recorded deposition, care must be taken to prepare your client for the nuances of having her or his testimony recorded on video.
▪ If the video testimony damages your case, your opponent will attempt to use it at trial. Approach the preparation of your client for a video deposition understanding that any part of it may, if permitted, be shown to the jury at trial by your opponent. The rules for preparing your client for a video deposition are therefore similar to preparing them for trial testimony. If your opponent is spending the money to take a video deposition, they are taking it seriously, and you should too.
▪ Consider objecting to the video deposition. If you are in federal court, Rule 30 of the Federal Rules of Civil Procedure (as amended effective December 1, 2007) clearly permits recording the deposition by “audio, audiovisual, or stenographic means.” Many state rules still require that video depositions be conducted in a manner to replicate the presentation of evidence at trial. Some states even require that the notice of a video deposition state the reason a video recording is necessary or desirable and include other provisions to ensure that the recorded testimony will be accurate and trustworthy and that the witness will be treated fairly. Consult the rules of the applicable jurisdiction for requirements and cases that may limit or otherwise prohibit the video deposition of your client.
▪ Record the questioning attorney. Many jurisdictions require that the video deposition be conducted in a manner to replicate the presentation of evidence at trial. Implicit in this requirement is that the jury be able to observe counsel while questioning the witness. This may help keep the opposing lawyer on his or her best behavior during the deposition.
▪ Prepare your client for an appealing “on camera” appearance. If your client is a truck driver, she or he may be uncomfortable in a suit. Know your client, and make sure your client is comfortable but presents a professional appearance. Remind your client to turn off cell phones and not to look at PDAs or other electronic devices during the deposition. Ask your client to wear solid colors like blue or white without patterns. If your client is wearing a jacket or coat, remind him or her to leave it on while on camera. Taking off the coat during a break in the deposition may make it look on film like they are getting nervous.
▪ Remember that not all the rules of a traditional deposition apply to a video deposition. In a stenographically recorded deposition, clients are often advised to “take as long as they want” to think about and respond to a question. On video, long pauses can appear like your client is hiding something or is being evasive. Similarly, terse “yes” and “no” responses, often recommended for the traditional deposition, can sound rehearsed on video. Some attorneys even suggest that video deponents briefly explain why they cannot recall an important fact, name or date during a video deposition.
▪ Carefully observe your client’s facial expressions prior to the video deposition. When you are preparing your client for a video deposition, pay careful attention to his or her facial expressions. Recognize and remind your client that the video will likely be taken of the face only. Facial expressions can be amplified and exaggerated when the tape is played back to the jury by experienced opposing counsel at trial. It is imperative that your client understand that they should not roll their eyes or make other facial expressions when asked a question. Remind your client to look at the examining attorney and concentrate on maintaining a pleasant facial expression while being asked a question. Advise your client not to look at you during the deposition, especially if you make an objection.
▪ Prepare your client to project positive body language during the deposition. Remind your client to sit up straight in the chair. Ask him or her to place their hands on the table in front of them and keep them there during the duration of the deposition. This will help maintain correct posture. For many people, eye contact signifies whether an individual is testifying truthfully. Opinions differ about whether you should have your client look directly at the camera or at questioning counsel. Whatever method you choose, make sure that your client is aware that the camera remains fixed on them at all times during the deposition, no matter who is talking in the room. Advise them not to look around while speaking or listening to others in the room.
▪ Prepare yourself for the video deposition. Federal Rule of Evidence 30(c)(2) requires that deposition objections “whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or any other aspect of the deposition must be noted on the record.” The rule further states that “an objection must be stated concisely in a non-argumentative and non-suggestive manner.” The interplay between the federal rules requiring objections to be stated on the record and the reality that what you say and do during a video deposition may be replayed in front of the jury requires you to carefully anticipate and prepare your objections prior to the deposition. Even if you are not on camera, the tone of your voice and the way you present your objections will be carefully scrutinized by the jury if shown at trial. Because you most likely did not set and therefore technically do not control the deposition of your client, you need to consider the possibility that you may be on camera during the deposition. If you arrive at the deposition and find that you will be on camera, the same rules you used to prepare your witness for the video deposition now apply to you. Also remember that if you or your client have a microphone, what you say to them during a deposition may be on tape and perhaps negate the attorney-client privilege.
▪ Advise your client not to argue with the examining attorney.This looks worse on video than in a deposition transcript.
▪ Anticipate areas of possible questioning. This takes on greater importance in preparing for a video deposition because the look of surprise appears on video but not on the pages of a transcript.
Space limitations do not permit a detailed examination of all the subtle differences between preparing your client for a video deposition rather than a traditional deposition. Hopefully, this checklist will get you thinking about some differences and provide you with a starting point for effectively preparing your client for a video deposition.
Michael Vercher is a partner specializing in civil litigation at Christian & Small LLP in Birmingham, Alabama. He currently serves as the ABA YLD’s Senior Committee Director and is a former chair of the ABA YLD’s Tort, Trial and Insurance Committee. Vercher is also a former ABA YLD District Representative for District 12 (Alabama and Georgia) and an associate editor of The Affiliate.
“Preparing Your Client for a Video Deposition,” The 201 Practice Series: Beyond the Basics, by Michael A. Vercher, 2009, American Bar Association Young Lawyers Division. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved.