Effective use of deposition video clips at trial

[TOP VERDICTS SUPPLEMENT]

Deposition designations are often low-priority tasks performed at the very end of the pretrial process. Designating, counter-designating and counter-counter-designating are frequently mundane chores assigned to the junior-most team member in order to introduce prerecorded depositions at trial. Although their value is often overlooked, video depositions, exhibited through effective designations, present a significant opportunity for trial lawyers to mix media, captivate jurors, undermine adverse witnesses and reinforce themes. If nothing else, they lend flexibility during the presentation at trial when testimony runs shorter than anticipated or witnesses fail to appear. If used strategically, video clips of depositions can be an effective tool in presenting your case, while also undermining your adversary's case.

Governing Law

Deposition designations are governed by Section 2025.620 of the Code of Civil Procedure in California state court, and Rule 32 of the Federal Rules of Civil Procedure in federal court. While slightly different in form, both rules permit parties to play clips of videotaped deposition testimony in a variety of circumstances. For example, in both state and federal court, parties are permitted to play deposition clips from "unavailable" witnesses, including their own and those of the adverse party. Additionally, a party can impeach a trial witness with video clips of prior inconsistent statements made during deposition.

Beyond these obvious uses, there are several ways clips of videotaped deposition testimony can be used at trial to advance and enhance your case.

Mixing Media

Deposition video clips may be used to break up what might otherwise be a monotonous run of live testimony. It can be mind-numbing for lay jurors to hear testimony, day in and day out, from a parade of witnesses. Playing video clips can break up this monotony. Additionally, video clips often introduce new voices into the trial in the form of the deposing attorneys. Anecdotal evidence suggests that jurors are more likely to pay closer attention when the mode in which information is presented to them varies.

Further, while the law favors live testimony, jurors often view videotaped testimony as having equal, if not greater, value. After trial, some jurors have remarked that a witness was "so important" that her testimony was videotaped. Understanding the value many jurors place on video testimony allows s a lawyer to strategically emphasize or underscore points with thoughtfully selected clips.

Frontloading and Backloading

Frontloading and backloading deposition clips also can be an effective strategy for controlling a case narrative. Jurors are more likely to digest the information that bookends a witness's testimony, rather than what is presented in the middle. While this is an intuitive concept with live witnesses, it is often forgotten when working with deposition designations. The best video clips get to the punchline right out of the box. Likewise, clips that end with a bang,, tend to leave the most significant impact. Awareness of these facts allows the designating party to drive maximum impact with limited time.

Understanding these facts also gives the counter-designating party the opportunity to "bury" unhelpful testimony. Frontloading the deposition designation with introductory colloquy can dull the edge of devastating testimony. Likewise, designating new or benign subject matter for the conclusion of a clip can prevent the proverbial "mic drop" by opposing counsel.

Demeanor Management

Video clips also can overshadow or substantively impair helpful testimony if they depict a lawyer or witness engaging in bad behavior. Too often during deposition, attorneys are overly aggressive, vitriolic and even bullying of witnesses. Testimony that appears perfect on paper can be overshadowed, missed or, worse yet, backfire if it was elicited by bad behavior. Likewise, even the best testimony can antagonize jurors if it is articulated in a snobby or apathetic manner. Mannerisms such as chair-rocking, eye-rolling, questionable pausing, excessive sweating, snorting and fidgeting -- all of which fail to show on the written page -- can distract jurors, causing them to miss or misconstrue the substance of testimony. Watching your designation clips, from start to finish, before offering them into evidence is critical to preventing the negative impact of bad behavior.

Tonal Impeachment

Video clips of an adverse witness also can be used effectively to undermine the witness's image or likability. No matter how disciplined a witness may be, he inevitably will have moments of weakness during a multi-hour deposition -- possibly becoming impatient or even angry. Marshalling footage of this can provide tonal impeachment opportunities that show the jury the witness isn't as amiable or pleasant as he appears at trial.

Other Cross-Examinations

Another effective, but often overlooked, use of deposition video clips is during the cross-examination of an adversary's witnesses. Just as an email written by a party-opponent is admissible under Rule 801 of the Federal Rules of Evidence, most courts will allow video of testimony by a party-opponent to be played under the same rationale. Thus, beneficial video of your opponent's CEO, for example, can be played during your cross-examination of its CFO. In addition to using your adversary's witness to advance your theme, this practice can highlight the tensions in your adversary's narrative by juxtaposing conflicting voices within the same party.

Closing Argument

Deposition clips can be a particularly effective tool in closing argument. After video clips are admitted at trial, they are the only way jurors can hear a voice other than the trial lawyers' during closing. While the closer is forced to summarize what the live witnesses testified to at trial, she can use portions of the admitted video testimony to show the jury exactly what a witness said. In addition to providing jurors a break from what may be hours of argument from a single voice, playing deposition clips during closing eliminates the risk that jurors might doubt the lawyer's characterization of trial testimony. Selecting the best clips, then strategically ordering and replaying them during closing argument can be a tremendously impactful way to tell your narrative.

Video Clips as Insurance

Deposition designations also can provide insurance against being forced to prematurely rest your case when your witnesses fail to appear, reschedule their appearances or take less time than expected on the stand. Many courts have informal practices, and in some cases rules, that require a party to rest when it runs out of evidence to present on a given day. Deposition designations -- particularly on rather mundane or background basics -- can help bridge your case from one day to the next. Because it is not settled whether video clips can be shown of witnesses who also are testifying live, it is important to use clips of witnesses outside the court's subpoena power. While it is hardly thrilling to show 30 minutes of video testimony explaining your client's reporting relationships, for example, doing so is better than being forced to end your case early with a judgment as a matter of law looming.

Conclusion

Deposition clips can be powerful tools at trial. Regardless how they are used, being thoughtful and strategic during the designation process can give you an advantage over your opponent.