The case for video depositions

Posted: March 30, 2017

The law is made up of words, documents and abstractions. Many of us love this stuff. And we’re good at it. But it can put the rest of the world to sleep.

Take jurors, who live normal lives steeped in TV and other multimedia. Even while sitting in court experiencing the drama of a trial, they want to see something. It’s human nature. And it’s one reason video depositions make so much sense in 2017.

We estimate that fewer than 1 in 5 depositions today are video recorded, though the rate is growing. When it comes to witness testimony, seeing the witness talk is much more powerful than reading the transcript. You see the demeanor, the presentation, the nerves, the tics and, occasionally, the telltale contrast between the witness’s words and what their body is really saying.

Blog 11 - In blog image“How long have you worked at Acme?” the attorney asks.

“Five glorious years,” answers the deponent.

Is she being serious, sarcastic, funny, deadpan or inscrutable? In a transcript, you’ll never know. On video, it’s clear.

There’s a famous clip of Bill Gates rocking back and forth. Then there was the expert scientific witness who showed up for a deposition dressed for … hunting? True story.

Legal teams are using video depositions in court, in settlement conferences, in talks with clients, in team conversations about legal strategy, in training, and in selling back (e.g., by showing clients “best of” deposition performances). The classic scenario for video depositions is capturing testimony for a witness who can’t attend a trial. Some firms are doing day-in-the-life videos of plaintiffs who have suffered personal injuries.

Here are some questions I’m often asked about video depositions:

When should I do a video deposition? – Any time you’re deposing key witnesses and experts. With fewer cases going to court, depositions are the new trial. A damning admission, contradiction, lie or slipup is far more dramatic on video and can mean the difference of hundreds of thousands of settlement/judgment dollars. At the pivotal time in a settlement conference, pull out your iPad and roll the decisive clip.

Can you give me an example of a valuable application?  – Okay, you’re general counsel for a manufacturer. A plaintiff with a sympathetic backstory has filed a dubious product liability claim against your company. Your external legal partners are worried that a jury will overcompensate the client. They want you to settle, but you want to see the witness with your own eyes. You order the deposition to be recorded on video. You see that the witness’s story isn’t holding water and you think a jury will see through it, too. You roll the dice, call her bluff and save your company thousands.

What resources do I need? – Any deposition worth video recording is worth doing professionally. One major reason you’ll need a videographer is that a pro can easily sync the transcript with the video. You’ll then be able to take all the depositions in a case, search the transcripts for any word(s) or topics you want, and with one click find the precise frame of the video where the word occurs. Powerful stuff. This doesn’t preclude you from using a webcam or laptop to obtain your own footage for immediate review.

How can I work with the recording?  – Although you want a pro to film it, it’s easy for amateurs to work with clips. Just load them from a disc or download from your deposition vendors’ repository and search the footage for content, evidence, names, cases, people or issues of interest. Clip the segments you want, sew them together if you like, and share with the people who need to see them. With bandwidth and processor speed increasing, and user experiences getting ever-more-friendly, you’ll be surprised at the ease of finding, clipping and sharing key segments. Now you can share them with jurors, too, by easily inserting them into a PowerPoint or trial presentation software.

Everyone, even legal professionals, wants to see something. Since it’s now easier to do and could help your case, why wouldn’t you give it a try?

Peter Hare

Peter Hare is the Director of Product Marketing at Esquire Deposition Solutions. Peter’s career has focused on the design of legal information management workflow and the development of emerging technology-supported legal support services to help law firms and in-house counsel collect and process information efficiently and securely. In his current position at Esquire, Peter is responsible for driving the development and management of Esquire’s portfolio products.  Peter is a graduate of Macalester College in St. Paul, Minnesota.