Video Depositions: 18 Do’s & Don’ts You Didn’t Know About

Aug 10 2018 | posted by LORR Team

Video depositions can be powerful pieces of evidence — but only if they’re done right. A sloppy, poorly done or hard-to-hear video only serves to confuse jurors and muddle your argument. A clear, concise, and expertly captured one? Now that’s the key to succeeding on the courtroom floor.

Why Would You Use a Video Deposition?

There are many reasons you may want to use a video deposition, but the most common is a witness’s inability to appear before court. Maybe they’re sick or can’t travel, or maybe you just can’t afford the hefty fees that come with taking an expert witness on the road. With a video deposition, you can still capture their vital testimony, without them having to be on site and live in court.

Video depositions are also great ways to show contradictions in past testimony — a sure-fire strategy to disproving opposing arguments.

Still, in order to enjoy these benefits, it’s important that your video deposition is done right, that it conveys your point and shows the witness in the best possible light. How do you do that? What should you focus on and what should you avoid? Let’s break it down.

Video Depositions: The Must-Do’s

The point of a video deposition is to deliver as authentic and realistic an experience as you can. Though the witness might not physically be on site, jurors should feel like they are, and they should hear, see, and understand clearly what the witness is saying on video just as they would in real time.

Want to ensure that’s possible? Here are a few of the most important do’s when creating a video deposition of your own:

• Do prep your witness. You don’t want any surprises or outbursts captured on camera, so be thorough when preparing your witness for their deposition. Run through every potential topic and question they could be asked to address, and teach them about proper etiquette when interacting with opposing council.

• Do use professional equipment. You want your witnesses seen and heard clearly, and scrimping on equipment (or who’s operating that equipment) is the quickest way to do just the opposite. Videos with muddled, echoing sounds or snowy, grainy footage only distract and confuse jurors, likely hurting your case — and your chances of winning — in the end.

• Do approve your witness’s wardrobe. Again, you don’t want anything distracting your jurors from the testimony at hand, so make sure your witness is wearing something that won’t draw the eye or take their attention away from what’s important. Have them stick to simple suits and button-downs, and keep the colors muted and neutral.

• Do make them comfortable. On the day of the deposition, do your best to make the witness feel comfortable and at ease. Arrive early, and allow yourselves time to address any lingering concerns or worries. Engage in small talk to keep their mind active, and remind them that when in doubt, phrases like, “I don’t recall,” and, “I don’t know,” are always appropriate responses. A simple “no” or “yes” will also suffice.
• Do show them examples. Often, it helps witnesses to see other video depositions. If you’re able to, show yours examples of both a good and a bad video deposition. What went right? What went wrong? How did the witness conduct themselves? What could they have done better or differently? Seeing these points in action and on the screen can really help guide a witness in how they should act and conduct themselves.

If you have the time, conduct a mock deposition to give your witness a feel for what they can expect come filming day. Do your best to mimic the exact setting they’ll be placed in, and ask questions you expect they’ll be asked by opposing counsel. Then, give feedback as you go, instructing them on slight changes they can make to their demeanor, tone, facial expressions, etc. You may even want to film this mock deposition so you both can refer back to it later as you prepare for the shoot.

Video Depositions: The Definite Don’ts

You want your video deposition to instill confidence in the viewer, to make them believe the witness and what they’re saying. There are so many factors that can contribute to this believability, but here are general things you’ll want your witness to avoid during the filming:

• Fidgeting or moving around too much.
• Making odd facial expressions.
• Folding their arms.
• Blinking a lot or darting their eyes around.
• Putting their hand over their mouth.
• Looking at the floor.
• Pointing their finger.
• Gripping their upper arms tightly.

You should also instruct your witness on the following:

• Don’t be defensive. Being defensive or dodgy about a question is the easiest way to put doubt in a juror’s mind. Make sure to prepare your witnesses with any questions that may agitate them or throw them off guard. Ask them to be ready with a response that’s calm, collected, and polite. The opposing counsel will be looking to rile them up, so they should be ready for it.

• Don’t get emotional. Yelling, crying, storming out, or getting loud are only going to draw attention from what’s important: the witness’s testimony. Instruct them to keep their cool and check their emotions at the door. Every tiny outburst or reaction will be scrutinized down to the smallest detail, so don’t give opposing counsel any fodder.

• Don’t joke or might light of things. No matter what the subject of your case may be, tell your witnesses to take their depositions seriously. While the outcome may not impact their life or livelihood, it is important to many of the parties involved — your legal team included. Ask your witnesses to steer clear of any joking, jabbing, or even just sarcasm during the deposition. Though these may just be a common defense mechanism for the person, they often make witnesses look petty or dishonest.

• Don’t film the deposition yourself. You were hired to do what you do best: represent your client and try their case. Just as a videographer wouldn’t deliver the opening argument in the courtroom, you shouldn’t take on the physical camerawork or editing of your video depositions either. Leave the task to an expert, and ensure it’s done right the first time. Your reputation — and your client — are counting on it.

• Don’t cut corners. Be careful about cutting corners on equipment, videographers, or other items involved in the production process. Though it can be tempting to reduce your costs by a few hundred dollars, those nominal fees will pale in comparison to a loss in court. A poorly done video deposition can hurt your case immensely, not to mention your reputation as a professional.

Remember, a lot is riding on your video depositions, so make sure both you and your witness are properly prepared. Though it may take added efforts to do so, the result will be a much more effective and impactful deposition in the long run.

Need a Video Deposition? Call LORR

Want to utilize video depositions to power up your case or avoid the hefty travel bill of an expert witness?

LORR is here to help. With decades in the business, our legal videographers know how to make your depositions powerful, impactful, and effective. Contact us today to schedule your video deposition or to learn more.


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