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:

• Be aware of non-verbal communication.  Effective non-verbal communication includes leaning forward, listening attentively, and using only minimal hand gestures.  Do not allow the deponent to sit in a swivel chair or he/she will undoubtedly swivel in it!  Eye contact should be directed toward the questioner, not at the camera directly.  (The camera can be placed such that it is shooting over the shoulder and slightly to the side of the deposing attorney; or it can be set for a side shot of both the deposing attorney and the deponent, or just the deponent.  The over-the-shoulder-shot is preferable if the tape will be used in court because it allows the jury to see the witness’s facial expressions.)
• Conservative clothing is a must for a video deposition.  A dark business suit with a light blue or white shirt is appropriate for a man, a suit or sedate dress for a woman.  Jewelry, make-up, and hair should be simple and neat. 
• Keep the background simple.  A plain wall, a law library bookshelf, or a simple drape is a good backdrop.  Anything too busy will be a distraction to the viewer.  Under no circumstances should the background be windows with outside light entering the room.  Lighting should be bright, soft, and even.  Shadows behind or on the witness’s face are distracting.
• Be aware that time has greater significance in a video deposition.  The customary instruction to the witness is to pause and take time before answering.  On a videotape, the pauses seem longer; pauses suggest to jurors that the deponent doesn’t know the answer to the question.  As such, in a video deposition, witnesses should answer as quickly as they can after listening carefully to the question.  Since juries are also bored by long delays, an effort should be made to have the camera turned off when the deponent is reading a long document.  Witnesses should be instructed not to play with or linger over documents after they have reviewed them, but rather should look up and listen for the attorney’s question.
• Beware of technical problems and plan ahead.  For example, having individual microphones for the attorney and for the deponent works best for sound quality.  A simple “lavaliere” microphone, clipped to each individual’s jacket, is the best way to do this.  A single microphone in the middle of the table tends to pick up background noise and produce uneven sound.  Hiring a professional videographer who will monitor the audio and video content of the proceedings is a must.

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).