Attorneys remotely deposing a witness

Why Lawyers Should Consider Adding Video To Their Depositions

Attorneys remotely deposing a witness

Why Lawyers Should Consider Adding Video To Their Depositions

Depositions have long been part of trials. Conventionally, depositions have been recorded in written transcript format and, when necessary, the transcript is read aloud during the trial. While this is one way of ensuring that a witness’s testimony is heard, it may not be the most effective. In fact, the most effective method may be video, which is why lawyers should consider adding video to their depositions. Whether you need a stenographer or legal videographer call Kusar Court Reporters at (800) 282-3376.

What Are Depositions and Why Are They Done?

Per the American Bar Association, a deposition is a witness’s sworn out-of-court testimony. A deposition can be used to gather information as part of the discovery process or to prepare a witness for trial. Additionally, a deposition may also be used at trial. Depositions also allow all parties to the trial to know in advance what a witness will say at trial so they can prepare for cross-examination, to call other witnesses to dispute the testimony, or to use other strategies.

Conventional Deposition Recordings and Their Flaws

Conventional deposition recordings are written transcripts or audio recordings. Both methods are useful and effective. A court reporter or stenographer transcribes the testimony in written format. He or she may do this live, as the testimony is being given, or after the deposition, using the audio recording. There are some challenges that can arise from these methods include the following:

  • The transcriber may make a mistake—It is rare, but the court reporter may mishear a word or may not hear a word at all if the witness is speaking very quickly. A missing or misunderstood word may change the meaning of the testimony.
  • Transcripts are often cleaned up—Pauses, false starts, stutters, and more are often removed from the written transcript to offer a shorter and more succinct transcript. These, however, may make a difference in how a juror views the witness and his or her testimony.
  • Written words do not convey tone, body language, etc.—A written transcript will not show the jurors how the witness avoided eye contact, hunched over, had shaking hands, or did other things that may indicate a lack of honesty. Words on paper also do not show a tall posture or a confident tone as a witness testifies truthfully. A video, on the other hand, would allow the jury to see the unspoken communication that can help them decide whether to believe the witness.
  • A written transcript is difficult to follow when read aloud—Aside from appearing simple and clear-cut, which is often not the case, a written transcript can be decidedly difficult to follow when read aloud in court since emphasis is not allowed to be added. The lawyer must read the transcript in a monotone, which may cause the jurors to stop paying attention rather than, as intended, interject logical emphasis as they listen. A video captures a person’s attention, particularly in recent years with the prevalence of YouTube and other video steaming services.

Why Lawyers Should Add Video to Their Depositions

There are many reasons why lawyers should consider adding video to their depositions, including the following.

Video Adds Context

A written transcript is just the words that were spoken during the deposition. There is no tone, no body language, and no way to emphasize anything. Video adds context to those words by allowing jurors to see the witness’s body language and hear the tone of voice and whether the witness stumbled over words, hesitated, or otherwise indicated whether he or she was being truthful.

Video Shows Witness Demeanor

A witness may glare angrily when asked a question or may fidget nervously before answering. The witness may have spontaneous reactions that might be subdued in court. There may be pauses or other subtle signs of the witness’s emotional state that can only be noticed on video, not in the words of a transcript.

Video Can Substitute for a Witness Who Cannot Come to Court

If a witness lives far away, weather or personal responsibilities may interfere with his or her ability to appear at trial. The witness may be elderly or become ill and, therefore, be unable to appear in person. In some cases, the witness may pass away before trial. There are many other possible reasons to prevent a witness from appearing in court to testify. A video deposition can be used to substitute for a live testimony in these cases.

Video Is a Cost-Effective Way for Experts To Testify

Expert witnesses can be a critical piece of a trial strategy, but they can also be expensive. Experts often travel long distances and spend several days in a hotel for a trial. Recording a video deposition to be used for the trial can shorten the amount of time the witness is needed. In addition, lawyers can show the testimony more than once, without the expert’s physical presence. Recording a remote video deposition can save even more money by eliminating travel expenses.

Video Holds the Jury’s Attention

As a written transcript is being read, lawyers are not allowed to add emphasis to words or phrases. This means reading in a monotone, which can be difficult to follow. In today’s world of visual media, having something for the jury to watch is a much more effective way of keeping their attention. Kusar Court Reporters provides high-definition recordings delivered in physical DVD or digital formats to meet your videography needs.

Video Allows Views of Physical Evidence

If someone described another person as using a “slashing motion,” one person may picture that slashing as going from left to right while another may see it as going from top to bottom. Still others may see it differently. If physical evidence is handled by the witness, allowing the jury to see it in a video will ensure that everyone sees the same behavior. They may still interpret it differently, but because they have seen it rather than heard a description of it, there is less room for confusion.

Video Helps Lawyers Determine Whether To Use a Particular Witness

Lawyers can watch their client or other witnesses in a video recording and determine whether to call the witness to the stand during the trial. A lawyer can also use the video to go over testimony while preparing for direct- or cross-examination of a witness.

Video Can Impeach a Witness if the Testimony Changes

A written transcript can also indicate that a witness changed his or her testimony, but it is much more powerful to play a video showing the witness’s original testimony. Many lawyers will add captions to allow the text to remain on the screen and pause the video on the words in question so that it can be clearly seen by the witness, the opposing counsel, the judge, and the jury.

Tips for Creating Quality Video Depositions

The key to an effective and high-quality deposition is to use something better than a cell phone or web camera on a laptop. Hiring a videographer or a court reporting agency to record your video deposition ensures that your video will be clear, concise, and admissible in court.

Some additional tips for creating a quality video deposition include:

  • Speak clearly and ask that others speak loudly and clearly
  • Keep emotions in check
  • Eliminate background noise
  • When you hire a professional, give plenty of time to set up
  • Choose a large enough room to allow all participants to be present comfortably
  • Consider a remote video deposition using tips for conducting video depositions by remote from the American Bar Association

Are You Ready To Add Video to Your Depositions?

While video recording does add some additional expense to any case, learning why lawyers should consider adding video to their depositions can help justify the expense. Adding video to your depositions might even be the deciding factor that can bring a juror to your side. If you are thinking about adding video to your depositions, consider contacting Kusar Court Reporters at (800) 282-3376 to discuss your options.

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