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Times have changed. Depositions, used at trial for impeachment purposes, are now more than just dry words on a page. Increasingly, they are on videotape and the courts are happy about that. Weseloh-Hurtig v. Hepker, 152 F.R.D. 198, 201 (D. Kan. 1993). Should medical malpractice lawyers feel the same way? Well, it depends on whether you are the attorney taking the deposition or if you are the one whose client's deposition is being captured on video. It can be a blessing or it can be the death knell for your case. Let's look at this developing trend.
A Brief History
Until 1993 there was no right to a video deposition in the Federal Courts. Prior to the 1993 amendments to Fed. R. Civ P. 30, any party wishing to take a video deposition had to do it either by consent of the parties or by order of the court. Now the rule states: ” … The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means.” The majority of the states have followed suit in mirroring the Federal Rule.
The Pros of Videotaped Depositions
The advantages of video depositions are easy to understand:
The Cons of Videotaped Depositions
The disadvantages of videotaped depositions are primarily for those whose clients and witnesses are being videotaped by the opposition:
Despite the concerns, it appears that videotaped depositions are here to stay. Indeed many courts favor their use and Fed. R. Civ. P. 32 actually establishes a presumption in favor of them. What does that mean for lawyers whose clients or witnesses are going to be videotaped at deposition? — a whole different level of preparation. Now it is not just saying the right thing, it is saying the right thing in an effective way.
Preparing for a Videotaped Deposition Taken By Opposing Counsel
Lawyers need more training in preparing for and taking depositions, especially videotaped depositions. Many experienced litigators subscribe to the anecdotal view that cases are won, not at trial, but at depositions. Indeed in a recent survey of litigators, 92% of them thought depositions were “very important” or “extremely important.” Biesheuvel M: The Adequacy of Depositions Training: Should Law Schools Undertake to Do What Law Firms Fail to Do? UCLA School Of Law (Draft October 2003). Nonetheless, 57% of litigators in the same survey reported that they had received no training in taking depositions. Lawyers and their clients need more training and need to take more time in preparing for depositions.
Meeting with a witness an hour before a videotaped deposition is not going to impress on him or her the seriousness of the event. It also does not allow counsel and the witness to make the most of this opportunity to make the kind of impression that is best for the case. For example, increasingly, plaintiffs' counsel in medical malpractice cases are using poor performance by medical providers in producing settlement agreements. Regardless of the merits of the medicine, the cases are settled because the videotaped depositions now become smoking guns.
Make sure the videotape is set up in a way that will show your witness fairly. We have already mentioned some of the “tricks” less scrupulous attorneys may use to distort a videotaped deposition. Before the deposition begins, require the videographer to do a test with the witness. Do not proceed with the deposition if you are not satisfied that the videotape will be accurate and fair. Require the camera operator to maintain a constant view of the deponent, not allowing him or her to “zoom in” on the witness. Make sure that the witness will be videotaped in a straight-on position so that it is easy for the witness to make eye contact with the camera.
In addition, because of the visual aspect of videotaped depositions, the witness must be prepared not only on the content of his or her testimony, but on effective presentation. People primarily use nonverbal and demeanor cues when making decisions about veracity. For example, as eye contact increases, Americans rate people more favorably. They believe that the witness is not only more truthful but less anxious and has a higher level of self-esteem. Napieralski L, et. al.: The Effect of Duration of Eye Contact on American College Students' Attributions of State, Trait, and Test Anxiety. J Soc Psychol, v135 n3 p.273(8) (June 1995).
On the other hand, people believe liars behave nervously, move around more, avoid eye contact and commit speech errors. Id. at 5. This is so even when the content of what is being said is truthful. Therefore, preparing your witness so he will be seen as believable when he is indeed telling the truth becomes crucial.
Conclusion
Videotaped depositions are here to stay. Attorney expertise and witness preparation are, therefore, more important than ever. Of course, the attorney whose client or witness is to be the subject of a videotaped deposition has more things to worry about in witness preparation than before, and having to exert some control over the videographer adds a new wrinkle to the dynamics of the deposition session. But if careful preparations are made, the resulting video has greater potential to be a positive, rather than a negative, for the case.
Times have changed. Depositions, used at trial for impeachment purposes, are now more than just dry words on a page. Increasingly, they are on videotape and the courts are happy about that.
A Brief History
Until 1993 there was no right to a video deposition in the Federal Courts. Prior to the 1993 amendments to Fed. R. Civ P. 30, any party wishing to take a video deposition had to do it either by consent of the parties or by order of the court. Now the rule states: ” … The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means.” The majority of the states have followed suit in mirroring the Federal Rule.
The Pros of Videotaped Depositions
The advantages of video depositions are easy to understand:
The Cons of Videotaped Depositions
The disadvantages of videotaped depositions are primarily for those whose clients and witnesses are being videotaped by the opposition:
Despite the concerns, it appears that videotaped depositions are here to stay. Indeed many courts favor their use and
Preparing for a Videotaped Deposition Taken By Opposing Counsel
Lawyers need more training in preparing for and taking depositions, especially videotaped depositions. Many experienced litigators subscribe to the anecdotal view that cases are won, not at trial, but at depositions. Indeed in a recent survey of litigators, 92% of them thought depositions were “very important” or “extremely important.” Biesheuvel M: The Adequacy of Depositions Training: Should Law Schools Undertake to Do What Law Firms Fail to Do? UCLA School Of Law (Draft October 2003). Nonetheless, 57% of litigators in the same survey reported that they had received no training in taking depositions. Lawyers and their clients need more training and need to take more time in preparing for depositions.
Meeting with a witness an hour before a videotaped deposition is not going to impress on him or her the seriousness of the event. It also does not allow counsel and the witness to make the most of this opportunity to make the kind of impression that is best for the case. For example, increasingly, plaintiffs' counsel in medical malpractice cases are using poor performance by medical providers in producing settlement agreements. Regardless of the merits of the medicine, the cases are settled because the videotaped depositions now become smoking guns.
Make sure the videotape is set up in a way that will show your witness fairly. We have already mentioned some of the “tricks” less scrupulous attorneys may use to distort a videotaped deposition. Before the deposition begins, require the videographer to do a test with the witness. Do not proceed with the deposition if you are not satisfied that the videotape will be accurate and fair. Require the camera operator to maintain a constant view of the deponent, not allowing him or her to “zoom in” on the witness. Make sure that the witness will be videotaped in a straight-on position so that it is easy for the witness to make eye contact with the camera.
In addition, because of the visual aspect of videotaped depositions, the witness must be prepared not only on the content of his or her testimony, but on effective presentation. People primarily use nonverbal and demeanor cues when making decisions about veracity. For example, as eye contact increases, Americans rate people more favorably. They believe that the witness is not only more truthful but less anxious and has a higher level of self-esteem. Napieralski L, et. al.: The Effect of Duration of Eye Contact on American College Students' Attributions of State, Trait, and Test Anxiety. J Soc Psychol, v135 n3 p.273(8) (June 1995).
On the other hand, people believe liars behave nervously, move around more, avoid eye contact and commit speech errors. Id. at 5. This is so even when the content of what is being said is truthful. Therefore, preparing your witness so he will be seen as believable when he is indeed telling the truth becomes crucial.
Conclusion
Videotaped depositions are here to stay. Attorney expertise and witness preparation are, therefore, more important than ever. Of course, the attorney whose client or witness is to be the subject of a videotaped deposition has more things to worry about in witness preparation than before, and having to exert some control over the videographer adds a new wrinkle to the dynamics of the deposition session. But if careful preparations are made, the resulting video has greater potential to be a positive, rather than a negative, for the case.
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