The Persuasive Witness - Tips: Video Deposition Know-How
“THE VIDEO DEPOSITION PRESENTS DISTINCT CHALLENGES FOR ATTORNEYS AND WITNESSES”
While transcribed and video depositions have many similarities, there are a number of important skills involved in effective video deposition testimony that are not involved in a transcribed deposition. The most important thing to remember is that the camera doesn’t forget! This fact has three important implications:
1. You’re on stage. Witnesses must look credible at all times. This includes not only during responses, but between questions, between answers, and during any delays. Giving a video deposition means that a witness must develop a level of self-awareness beyond that which is required for a transcribed deposition.
2. Non-verbal behaviors are key. Non-verbal behaviors are extremely important in communicating credibility, and due to the nature of the camera, these behaviors are magnified. Therefore, distracting behaviors must be eliminated or minimized. Straightening a tie, twirling a piece of hair, adjusting glasses or shifting around in a chair are signs of nervousness. Nervousness can be interpreted as defensiveness or as having something to hide, so a calm and credible presence is crucial in a video deposition.
3. Possible trial testimony. In some states, video depositions can be used in lieu of live testimony even if the witness is present in the courtroom. As such, you need to prepare the witness as you would for testimony in front of a jury. Substantive preparation is extremely important for video depositions because unprepared deponents not only make errors, they appear nervous. As noted earlier, the camera exaggerates this appearance.
Given these aspects of video depositions, the following are just a few hints for effective testimony:
Overall, the video deposition presents distinct challenges for attorneys and witnesses. We find the best way to assure that a video deposition is successful is to conduct the witness preparation on videotape, before the actual deposition takes place. The attorney and a communications specialist can provide feedback to the witness long before the session is scheduled. In this way, you can be assured that the witness’s performance will be one you and the camera won’t want to forget.
For more information on videotape depositions see, “Preparing Your Witness for a Videotape Deposition,” by J. Ric Gass in For the Defense (September, 1992), or “The Televised Witness: Preparing Videotaped Depositions,” by Fred I. Heller, in Trial (September, 1992).