Preparing Your Client for a Video Deposition
By Michael A. Vercher
Recent studies show that jurors rely heavily on nonverbal communication
like eye contact and body language to judge the veracity of a witness. In
response, savvy litigators are using with greater frequency a powerful discovery
tool, the video deposition. In addition to the “standard” rules
applicable to the traditional stenographically recorded deposition, care
must be taken to prepare your client for the nuances of having her or his
testimony recorded on video.
▪If the video testimony damages your case, your opponent
will attempt to use it at trial. Approach the preparation
of your client for a video deposition understanding that
any part of it may, if permitted, be shown to the jury at
trial by your opponent. The rules for preparing your client
for a video deposition are therefore similar to preparing
them for trial testimony. If your opponent is spending the
money to take a video deposition, they are taking it seriously,
and you should too.
▪Consider objecting to the video deposition. If
you are in federal court, Rule 30 of the Federal Rules of Civil
Procedure (as amended effective December 1, 2007) clearly permits
recording the deposition by “audio, audiovisual, or stenographic
means.” Many state rules still require that video depositions
be conducted in a manner to replicate the presentation of evidence
at trial. Some states even require that the notice of a video
deposition state the reason a video recording is necessary
or desirable and include other provisions to ensure that the
recorded testimony will be accurate and trustworthy and that
the witness will be treated fairly. Consult the rules of the
applicable jurisdiction for requirements and cases that may
limit or otherwise prohibit the video deposition of your client.
▪Record the questioning attorney. Many jurisdictions
require that the video deposition be conducted in a manner
to replicate the presentation of evidence at trial. Implicit
in this requirement is that the jury be able to observe counsel
while questioning the witness. This may help keep the opposing
lawyer on his or her best behavior during the deposition.
▪Prepare your client for an appealing “on camera” appearance. If
your client is a truck driver, she or he may be uncomfortable
in a suit. Know your client, and make sure your client is comfortable
but presents a professional appearance. Remind your client
to turn off cell phones and not to look at PDAs or other electronic
devices during the deposition. Ask your client to wear solid
colors like blue or white without patterns. If your client
is wearing a jacket or coat, remind him or her to leave it
on while on camera. Taking off the coat during a break in the
deposition may make it look on film like they are getting nervous.
▪Remember that not all the rules of a traditional
deposition apply to a video deposition. In a stenographically
recorded deposition, clients are often advised to “take
as long as they want” to think about and respond to
a question. On video, long pauses can appear like your client
is hiding something or is being evasive. Similarly, terse “yes” and “no” responses,
often recommended for the traditional deposition, can sound
rehearsed on video. Some attorneys even suggest that video
deponents briefly explain why they cannot recall an important
fact, name or date during a video deposition.
▪Carefully observe your client’s facial expressions
prior to the video deposition. When you are preparing
your client for a video deposition, pay careful attention
to his or her facial expressions. Recognize and remind your
client that the video will likely be taken of the face only.
Facial expressions can be amplified and exaggerated when
the tape is played back to the jury by experienced opposing
counsel at trial. It is imperative that your client understand
that they should not roll their eyes or make other facial
expressions when asked a question. Remind your client to
look at the examining attorney and concentrate on maintaining
a pleasant facial expression while being asked a question.
Advise your client not to look at you during the deposition,
especially if you make an objection.
▪Prepare your client to project positive body language
during the deposition. Remind your client to sit
up straight in the chair. Ask him or her to place their hands
on the table in front of them and keep them there during
the duration of the deposition. This will help maintain correct
posture. For many people, eye contact signifies whether an
individual is testifying truthfully. Opinions differ about
whether you should have your client look directly at the
camera or at questioning counsel. Whatever method you choose,
make sure that your client is aware that the camera remains
fixed on them at all times during the deposition, no matter
who is talking in the room. Advise them not to look around
while speaking or listening to others in the room.
▪Prepare yourself for the video deposition. Federal
Rule of Evidence 30(c)(2) requires that deposition objections “whether
to evidence, to a party’s conduct, to the officer’s
qualifications, to the manner of taking the deposition, or
any other aspect of the deposition must be noted on the record.” The
rule further states that “an objection must be stated
concisely in a non-argumentative and non-suggestive manner.” The
interplay between the federal rules requiring objections to
be stated on the record and the reality that what you say and
do during a video deposition may be replayed in front of the
jury requires you to carefully anticipate and prepare your
objections prior to the deposition. Even if you are not on
camera, the tone of your voice and the way you present your
objections will be carefully scrutinized by the jury if shown
at trial. Because you most likely did not set and therefore
technically do not control the deposition of your client, you
need to consider the possibility that you may be on camera
during the deposition. If you arrive at the deposition and
find that you will be on camera, the same rules you used to
prepare your witness for the video deposition now apply to
you. Also remember that if you or your client have a microphone,
what you say to them during a deposition may be on tape and
perhaps negate the attorney-client privilege.
▪Advise your client not to argue with the examining
attorney. This looks worse on video than in a deposition
transcript.
▪Anticipate areas of possible questioning. This
takes on greater importance in preparing for a video deposition
because the look of surprise appears on video but not on the
pages of a transcript.
Space limitations do not permit a detailed examination of all
the subtle differences between preparing your client for a video
deposition rather than a traditional deposition. Hopefully, this
checklist will get you thinking about some differences and provide
you with a starting point for effectively preparing your client
for a video deposition.
Michael Vercher is a partner specializing in civil litigation at Christian & Small LLP in Birmingham, Alabama. He currently serves as the ABA YLD’s Senior Committee Director and is a former chair of the ABA YLD’s Tort, Trial and Insurance Committee. Vercher is also a former ABA YLD District Representative for District 12 (Alabama and Georgia) and an associate editor of The Affiliate.
Note
“Preparing Your Client for a Video Deposition,” The 201 Practice Series: Beyond the Basics, by Michael A. Vercher, 2009, American Bar Association Young Lawyers Division. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
© Copyright 2009, American
Bar Association.
