Videotaped Depositions: Goldmine or Curse?

The Pros of Videotaped Depositions

The advantages of video depositions are easy to understand:

• We remember what we see and hear much more than we remember what we hear alone. If jurors hear testimony only, without accompanying visual information, their recall is at the 10% level after 3 days. However, if jurors hear testimony with visual input, their recall is 65% at the 3-day mark — a significant difference. Berch RW: A Proposal to Amend Rule 30(b) of the Federal Rules of Civil Procedure. 59 Fordham L. Rev. 347, 372 (1990). If what jurors hear and see is positive, that will stay with them; but a bad visual performance will stay with them too.
• We use visual cues to determine truthfulness. In a recent piece of research, people were asked to determine which of six communicators were truthful and which were lying. Those who correctly determined the liars did so primarily by using demeanor and visual cues, not what the speakers actually said. Feeley TH, Young MJ: Self-Reported Cues About Deceptive and Truthful Communication: The Effects of Cognitive Capacity and Communicator Veracity. Communication Quarterly, 48 No.2, 101-19, Spring 2000.”Researchers have concluded that nonverbal cues are superior to verbal cues for both encoding and decoding messages.” Hale JS, James B: Nonverbal Primacy in Veracity Judgments. Communication Reports, Vol. 3 Issue 2, p.75, Summer 1990. People believe liars behave nervously, fidget, fail to keep eye contact and commit speech errors. Feeley TH, deTurck MA, et al.: Global Cue Usage in Behavioral Lie Detection. Communication Quarterly, 43, 420-430, 1995. This means that decision-makers who see a videotaped deposition have more information, consistent with how they make decisions throughout their lives, on which to determine whether a deponent is being honest and forthright or not.
• Attorney misbehavior is more easily kept in check. Videotaped depositions capture intimidating techniques that would not appear in a written transcript. See, e.g., Kelly v. GAF, 115 F.R.D. 257, 257-59 (E.D. Pa. 1987). It's what Sandra Gavin of Rutgers School of Law calls its “babysitting ability.” “It's the posturing, the pointing of a finger, the tone in the voice. It doesn't show up on a transcript.” Horrigan D: Going to the Videotape: A New Era for Depositions. The Legal Intelligencer, May 15, 2003.

The Cons of Videotaped Depositions

The disadvantages of videotaped depositions are primarily for those whose clients and witnesses are being videotaped by the opposition:

• Attorneys may try to videotape a deponent in such a way as to distort reality. The courts are very concerned about intentional distortion by attorneys videotaping the deposition of an opposing party or witness. The Federal Rule specifically addresses this: ” … The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques.” At least eight other states have adopted this language to address the issue of camera distortion. Indeed, a number of states have gone further with specific instructions. The Kentucky Rule 30.02(4)(b) states: “ The camera will remain stationary at all times during the deposition and will not 'zoom' in or out on the witness excepting those times during the deposition when the witness is displaying, for the jury's viewing, exhibits or other pieces of demonstrative proof that can only be fairly and reasonable seen on the videotape by use of the camera 'zooming' in on said evidence.” New Mexico and Alaska also have prohibitions against camera movement. In a Wall Street Journal article, attorneys recounted examples of unfair techniques – pointing the camera up at the witnesses to “distort their faces and make them look sinister” and “pacing back and forth off camera, causing the witnesses' eyes to dart around, making them look shifty.” Davis A: In Videotaped Depositions, Every Twitch Tells a Tale. The Wall Street Journal, Dec. 8, 1998, p.B1.
• Excerpts of videotaped depositions used by the opposing attorney during opening statements may unfairly prejudice jurors. There is debate as to whether attorneys should be allowed to use excerpts of videotaped depositions during opening statements. Studies show that visual images are high in emotional appeal. They act on the part of the human brain that forms “beliefs” at an emotional level. Solomon S: Playing High-Tech Show-and-Tell in the Courtroom: Chalk and Legal Argument are No Longer Sufficient,” N.Y.L.J., May 22, 1995, Courtroom Technology at p.7. Since we believe what we see, and we remember our first impressions best, the impact of videotape clips during opening statements can have a greater impact than may be warranted. Fed. R. Civ. P. 32(a)(4) does allow counsel to object to the use of a videotape that has been edited in a way that does not fully depict the witnesses' testimony, but by and large the courts do allow videotapes to be used during opening. That means that a devastating first impression of the parties or witnesses on the videotape could make later testimony almost irrelevant. As one plaintiff's attorney said, “It's a very, very effective tool. You can digitize and put it on a PowerPoint presentation and make one hell of an opening.” Hsieh S: Cameras At the Deposition: Plaintiffs' Secret Weapon? Lawyers Weekly USA, April 12, 2004.
• Videotaped depositions can be shown to the fact finder in a way that may unduly prejudice the other side. The use of video at trial has been primarily used by plaintiffs' lawyers. Obviously, a witness who has done poorly at the deposition but now does better in the courtroom is fair game. The bigger issue is a presentation that twists information to create a potentially unfair picture: techniques such as putting someone's image alongside a smoking-gun document and freezing the film on a phrase or facial expression. Since we know there is an inverse relationship between the length of the video and its persuasiveness, such techniques can be used to distort the actual content of the deposition. Quattlebaum SW: Effective Video Presentations At Trial: Put On a Good Show, But Cut to the Chase (Part II). ARK. LAW, Summer 1993, at 56, 63 (1993). In other words, it has much more impact to have a short clip of a video deposition than a long one, especially when it shows an opposing witness at his or her worst. Given the impact of videos, courts have been generally receptive to claims of unfair prejudice (See, e.g., Brewer v. Jeep Corp., 546 F. Supp. 1147, 1149 (W.D. Ark. 1982)), but prohibiting them altogether is increasingly rare. Jones GT: Lex, Lies and Videotape. 18 U. Ark. Little Rock, L.J. 613 (Summer 1996).

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. 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:

• We remember what we see and hear much more than we remember what we hear alone. If jurors hear testimony only, without accompanying visual information, their recall is at the 10% level after 3 days. However, if jurors hear testimony with visual input, their recall is 65% at the 3-day mark — a significant difference. Berch RW: A Proposal to Amend Rule 30(b) of the Federal Rules of Civil Procedure. 59 Fordham L. Rev. 347, 372 (1990). If what jurors hear and see is positive, that will stay with them; but a bad visual performance will stay with them too.
• We use visual cues to determine truthfulness. In a recent piece of research, people were asked to determine which of six communicators were truthful and which were lying. Those who correctly determined the liars did so primarily by using demeanor and visual cues, not what the speakers actually said. Feeley TH, Young MJ: Self-Reported Cues About Deceptive and Truthful Communication: The Effects of Cognitive Capacity and Communicator Veracity. Communication Quarterly, 48 No.2, 101-19, Spring 2000.”Researchers have concluded that nonverbal cues are superior to verbal cues for both encoding and decoding messages.” Hale JS, James B: Nonverbal Primacy in Veracity Judgments. Communication Reports, Vol. 3 Issue 2, p.75, Summer 1990. People believe liars behave nervously, fidget, fail to keep eye contact and commit speech errors. Feeley TH, deTurck MA, et al.: Global Cue Usage in Behavioral Lie Detection. Communication Quarterly, 43, 420-430, 1995. This means that decision-makers who see a videotaped deposition have more information, consistent with how they make decisions throughout their lives, on which to determine whether a deponent is being honest and forthright or not.
• Attorney misbehavior is more easily kept in check. Videotaped depositions capture intimidating techniques that would not appear in a written transcript. See, e.g., Kelly v. GAF , 115 F.R.D. 257, 257-59 (E.D. Pa. 1987). It's what Sandra Gavin of Rutgers School of Law calls its “babysitting ability.” “It's the posturing, the pointing of a finger, the tone in the voice. It doesn't show up on a transcript.” Horrigan D: Going to the Videotape: A New Era for Depositions. The Legal Intelligencer, May 15, 2003.

The Cons of Videotaped Depositions

The disadvantages of videotaped depositions are primarily for those whose clients and witnesses are being videotaped by the opposition:

• Attorneys may try to videotape a deponent in such a way as to distort reality. The courts are very concerned about intentional distortion by attorneys videotaping the deposition of an opposing party or witness. The Federal Rule specifically addresses this: ” … The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques.” At least eight other states have adopted this language to address the issue of camera distortion. Indeed, a number of states have gone further with specific instructions. The Kentucky Rule 30.02(4)(b) states: “ The camera will remain stationary at all times during the deposition and will not 'zoom' in or out on the witness excepting those times during the deposition when the witness is displaying, for the jury's viewing, exhibits or other pieces of demonstrative proof that can only be fairly and reasonable seen on the videotape by use of the camera 'zooming' in on said evidence.” New Mexico and Alaska also have prohibitions against camera movement. In a Wall Street Journal article, attorneys recounted examples of unfair techniques – pointing the camera up at the witnesses to “distort their faces and make them look sinister” and “pacing back and forth off camera, causing the witnesses' eyes to dart around, making them look shifty.” Davis A: In Videotaped Depositions, Every Twitch Tells a Tale. The Wall Street Journal, Dec. 8, 1998, p.B1.
• Excerpts of videotaped depositions used by the opposing attorney during opening statements may unfairly prejudice jurors. There is debate as to whether attorneys should be allowed to use excerpts of videotaped depositions during opening statements. Studies show that visual images are high in emotional appeal. They act on the part of the human brain that forms “beliefs” at an emotional level. Solomon S: Playing High-Tech Show-and-Tell in the Courtroom: Chalk and Legal Argument are No Longer Sufficient,” N.Y.L.J., May 22, 1995, Courtroom Technology at p.7. Since we believe what we see, and we remember our first impressions best, the impact of videotape clips during opening statements can have a greater impact than may be warranted. Fed. R. Civ. P. 32(a)(4) does allow counsel to object to the use of a videotape that has been edited in a way that does not fully depict the witnesses' testimony, but by and large the courts do allow videotapes to be used during opening. That means that a devastating first impression of the parties or witnesses on the videotape could make later testimony almost irrelevant. As one plaintiff's attorney said, “It's a very, very effective tool. You can digitize and put it on a PowerPoint presentation and make one hell of an opening.” Hsieh S: Cameras At the Deposition: Plaintiffs' Secret Weapon? Lawyers Weekly USA, April 12, 2004.
• Videotaped depositions can be shown to the fact finder in a way that may unduly prejudice the other side. The use of video at trial has been primarily used by plaintiffs' lawyers. Obviously, a witness who has done poorly at the deposition but now does better in the courtroom is fair game. The bigger issue is a presentation that twists information to create a potentially unfair picture: techniques such as putting someone's image alongside a smoking-gun document and freezing the film on a phrase or facial expression. Since we know there is an inverse relationship between the length of the video and its persuasiveness, such techniques can be used to distort the actual content of the deposition. Quattlebaum SW: Effective Video Presentations At Trial: Put On a Good Show, But Cut to the Chase (Part II). ARK. LAW, Summer 1993, at 56, 63 (1993). In other words, it has much more impact to have a short clip of a video deposition than a long one, especially when it shows an opposing witness at his or her worst. Given the impact of videos, courts have been generally receptive to claims of unfair prejudice ( See, e.g., Brewer v. Jeep Corp. , 546 F. Supp. 1147, 1149 (W.D. Ark. 1982)), but prohibiting them altogether is increasingly rare. Jones GT: Lex, Lies and Videotape. 18 U. Ark. Little Rock, L.J. 613 (Summer 1996).

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.