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Video Depositions: Essentials, Resources

YourABA
By Tonya Johnson

The runaway popularity of YouTube is just the latest example of the power of video to capture interest, entertain and influence opinions. This impact has not gone unnoticed by the legal profession, which has embraced the use of video depositions.
Video is a far richer tool than the stenographic transcript. Video depositions are much more likely to keep a jury's attention. Moreover, good printed testimony of a credible witness can become great testimony, when seen as a video.
In their Section of Litigation article, "Lights, Camera, Action: Taking, Defending and Using Video Depositions," authors John H. Mathias, David
M. Kroeger and Scott T. Schutte advocate video depositions in two particular circumstances: by the plaintiff as an admission by a party opponent—as permitted by Rule 32(a)(2) of the Federal Rules of Civil Procedure and Federal Rule of Evidence 801(d)(2)—and to depose important witnesses who will not be available for trial. Outside of the courtroom, video depositions can also be a valuable tool for reference when considering whether to use particular witnesses at trial, and when preparing for the direct- or cross-examination of those witnesses. Working with opposing counsel can benefit all of those involved in a trial. During the pretrial conference, all parties can discuss trial technology, determine quality standards and even agree to share technology resources. During his presentation "Effective and Inexpensive Technology and Presentation Techniques" for the ABA Section of Litigation 2010 Joint CLE Seminar, litigation consultant Robert L. Featherly of Litigation Insights opined, "This is nearly always a good idea. It reduces cost, minimizes big guy/big budget claims from the opposition, eliminates teardown and set up interruptions, and the court usually smiles on these arrangements."

Doing it yourself, Getting help
Video technology is more affordable than ever, making the creation of video depositions more accessible to lawyers. But before setting up a camera, lawyers should check the rules of their state to see if they are permitted to record a video deposition on their own. Personal injury lawyer Ryan Hodge discusses his own experience videotaping depositions in "Video Deposition Synching for Presentation Made Easy."
Video quality is important. Some lawyers may consider utilizing web conferencing technology such as WebEx, but using a webcam may result in video quality that is unacceptable for court proceedings. For guidance,
Effective Use of Courtroom Technology: A Judge's Guide to Pretrial & Trial, a free resource from the Federal Judicial Center and the National Institute for Trial Advocacy, provides information on the local and federal standards for videotaped testimony.
Alternately, an Internet deposition service can provide the proper technology and necessary staffing that otherwise would not be readily available at a law firm. Such a service can expedite the production of a deposition and ensure its integrity with the courts. Martindale-Hubbell® hosts a directory of Internet deposition professionals for consideration.

Preparing for a video deposition
As video depositions are visual products, it is important to prepare clients for the distinctions of video testimony. Advise them on body language and eye contact, and what these non-verbal cues communicate to viewers. Pay attention to how witnesses speak, as well. In his Chicago Lawyer article, "Skill at Taking Depositions Brings Victories in the Courtroom," attorney Robert A. Clifford provides some specific advice, cautioning that "long pauses or frequent 'OKs' … can become aggravating [on tape]." DepPrep by LexisNexis is an electronic tutorial that can help prepare witnesses for depositions.  Preparing video depositions are easier than ever with software that enables lawyers to work on deposition videos online. Lawyers can securely store real-time transcription and video of their proceedings in a centralized, electronic repository for later retrieval and review. Also within these applications, lawyers can annotate and index footage, and make their data searchable to locate, highlight and evaluate critical testimony. Lawyers can then select clips of the recorded proceedings for inclusion in their trial presentations. If lawyers are working with an Internet deposition service, they can request their data in a particular format for use with these software packages.