It’s one thing to say that video is more impactful than the spoken word or words printed on a sheet of paper. But it’s quite another to personally experience the power of video, as we all have during the past two years of virtual hearings, Zoom meetings, and remote depositions.
Litigators today know that video images make a strong impression on the viewer. They have experienced it in their practices, and, like the rest of us, they live in a world saturated with video screens. Video reveals (so we believe) who is prepared and who is not, who is telling the truth, and who is evasive.
Today litigators across the country know how to communicate via video with clients, judges, deposition witnesses, and — in some cases — juries. They’re familiar with the technology, many have in-office video studios, and they likely have formed strong opinions about how to look and sound their best on video.
Finally, there are the people whom successful litigators must win over during trial — the fact-finders, either a judge or jury. More than ever, these people are accustomed to gathering information and learning through video. We may not yet be living in a world where video images have supplanted text as the primary means of understanding the world, but we’re headed in that direction. We’re certainly living in a world where large portions of the population eschew the printed page in favor of TikTok, Twitter, YouTube, and other forms of bite-sized video communications.
Jurors understand and relate to video images. They’re steeped in them every day.
Against this backdrop, it’s fair to ask whether video depositions should not play a larger role in pretrial discovery and trial preparation.
Here are 10 reasons why litigators should consider recording a deposition on video. Although most of these reasons are familiar to many, it’s worthwhile to ask whether these reasons might be even more compelling in 2022 than in, say, 2000.
- Video evidence has never been easier to present to a judge or jury. Millions of dollars have been invested across the country in courtroom technology. The modern courtroom is well-equipped to play video recordings.
- Video evidence is familiar and powerful. Video depositions level the playing field when key witnesses are unavailable. Counsel will be at a disadvantage if critical testimony is read to the jury from a transcript, while the opposing party’s case is composed of live witnesses.
- Video depositions put attorneys on their best behavior. A video deposition may blunt the behavior of an opposing attorney known to be obnoxious, overbearing, or intimidating because the jury will see the deposition with their own eyes. Video depositions also bring out the best in litigators, prompting them to prepare more thoroughly than they might have with a deposition that isn’t recorded on video.
- Video depositions feel more “real” to the witness. If an attorney wants to bring out the best behavior in a deponent, the bright lights and on-camera vibe of a video deposition will drive home the gravity of the legal proceeding.
- Juries can see evasive or coached witnesses. Jurors often associate certain behaviors as evidence of untruthfulness. It might be a witness’s long pause before answering a question, or a failure to look at the questioner, or a sideways glance in the direction of defending counsel. Time-stamped deposition transcripts reveal the time gap between the attorney’s question and the deponent’s answer when the attorney reads this information to the jury. The same information has more impact however, when the jury views the video and sees for itself the pause that precedes the deponent’s answer. And a deposition transcript never records “body language” or other non-verbal deponent behavior during the deposition. With a video deposition, the jury sees everything.
- Impeachment with video is compelling. It’s one thing for a witness to read in open court his or her prior inconsistent deposition testimony. But it’s quite another for the jury to see and hear the witness’s prior inconsistent statements. Video evidence also makes it more difficult for witnesses to claim that they misunderstood the question during the deposition. With video, jurors can see the witness’s prior testimony and make their own determination whether the witness misunderstood the question.
- Video effectively simulates live courtroom testimony. A video deposition is often a good way for counsel to assess how a witness will appear to the jury at trial. A video deposition can serve as practice for the trial or as an evaluation tool to help counsel decide how to effectively present the witness’s testimony to theory.
- Video helps jurors understand complex testimony. Most of us have consulted YouTube for assistance learning how to perform a household task or quickly grasp the basics of a complicated process. Jurors are able to better understand technical information when it’s conveyed via video with all of the expert’s charts, exhibits, and other demonstrative evidence contemporaneously in view.
- Video depositions can save money. This is particularly true with expert witnesses, who may have to set aside days from their professional occupation to travel and testify in a faraway courthouse.
- Video depositions effectively preserve testimony. Despite the best efforts of everyone involved in the civil justice system, it can sometimes take years for a case to come to trial. During that time, witnesses can become unavailable due to poor health, death, moving to an unknown location, or merely residing beyond the trial court’s jurisdiction. People have never been more mobile than they are right now. A well-timed video deposition can capture their testimony in a form that will be most compelling to any future judge or jury.
Seeing Is Believing?
The world has undeniably changed in the past few years. More than ever, people who have been educated by video, entertained by video, and who increasingly relate to the world through video, are finding their way into jury boxes across the country.
Just last year, researchers at the Massachusetts Institute of Technology reported that individuals they studied found video evidence “modestly but meaningfully” more authentic and credible than text. Moreover, these same individuals were more likely to pay attention to video evidence that was presented in a mix of both textual evidence and video evidence.
Now might be a good time for litigators to reconsider how the timeworn adage “seeing is believing” applies to their case. Is this witness’s testimony so critical that it must be presented “live” – or a close approximation of “live” – to the factfinder? Will the factfinder be able to understand complex testimony without being able to see and hear the witness? Will my text-based evidence seem “real” to a jury accustomed to video images? Regardless of how these questions have been answered in years past, the answers today may very well be different.