A poorly performed deposition of a company representative on videotape can haunt litigation for years to come in the mass tort context. it may be something as inconsequential as a sweaty brow or nervous tick or a series of “i dunnos” which unintentionally communicate an appearance of evasiveness that undermines the witness’s substantive testimony.

Numerous studies have been conducted on the effects and impact of the videotape medium on jurors. “When jurors take their seats in the jury box, they bring an affinity for television and packaged information developed over countless hours of television viewing,” says Karen Martin Campbell.¹

Using videotape to present evidence “may impact the way the information is processed and judgments are formed” by the jury.²  Research shows that although individuals are typically critical and analytical of live communication, that “we routinely accept [television’s] communication without question.”³

Within the past decade or so, the videotape deposition has proven to be a very powerful and effective tool in the courtroom. All too frequently, the opposing party uses the company witness deposition adversely, and if the witness has not been adequately prepared for the medium, he or she may not come off as credible and trustworthy.

Rule 32 of the Federal Rules of Civil Procedure governs the use of depositions in court proceedings. it makes no distinction between a paper or videotape format. rule 32(a)(2) provides that “[t]he deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency” may be used “by an adverse party for any purpose.”⁴

The deposition may also be used by any party for purposes of contradicting or impeaching the testimony of a deponent as a witness⁵ or when the witness is unavailable because of events such as death, age, illness, infirmity, imprisonment, or lives more than 100 miles from the place of trial or hearing.⁶ Moreover, effective December 1, 2007, “[u]nless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”⁷

Given the punch of video on the perspective of jurors, part of the lawyer’s job is to prepare the company witness to be a master of the video medium so as to convey credibility. Here are a few practical tips:

• When you are giving a videotaped deposition, think of it as your reality television show where the camera is always on you, even when you are not speaking.
• Be aware of your non-verbal communication. i saw a deponent once get so flustered that he put the wrong the hand on the Bible, shifted his eyes under his brows, and mugged to the camera. the entire exchange took less than fifteen seconds, but it would be quite damaging to the deponent’s credibility if played to a jury. Being calm and avoiding distracting facial gestures, hand movements, and paper shuffling are crucial to building credibility. Be prepared to get into the substance and to get out the company’s side of the story when the appropriate questions are asked.
• Be aware of time when answering questions. long pauses are not recorded in the written transcript but on video may look evasive, uncertain, or nervous.
• Make sure that the camera is in front of you and not cocked at an angle. Watching a person speak in profile diminishes the impact of the words.
• Wear conservative clothing. solids work well.
• Practice. Practice. Practice.

Videotaped depositions present a wonderful opportunity to relate to a jury and communicate your side of the story.

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[i] Campbell, Karen Martin. “roll tape — the admissibility of Videotaped evidence in the courtroom,” 26 U. Mem. L. rev. 1445, 1447 (summer 1996).

[ii] Miller, Gerald r. & Norman E. Fontes, “Videotape on trial: a View from the jury box,” 58 (1974).

[iii] Baran, Stanley J. The Viewer’s Television Book: A Personal Guide to Understanding Television and its Influence. 26-27 (1980).

[iv] Fed. R. Civ. P. 32(a)(2) (Emphasis added).

[v] Id. at 32(a)(1).

[vi] Id. at 32(a)(3) (a)-(e)

[vii] Id. at 30(d)(1).

Finis