Debates, Depos and the Power of Video

The media continues to obsess over “who won” the veep debate last week.  A huge part of the discussion has involved commentary on demeanor, style and delivery.  Substance has, for the most part, taken a back seat.

We’ve all encountered the witness whose transcript reads really well on paper, but not so much on video (or in person).  In many ways, this is the dynamic that played out the televised debate.  If you only read the written transcript, your assessment of what happened was based strictly on the substance.  But if you watched the televised debate?  I’ll go out on a limb and guess that (a) you found it a lot more exciting, and (b) style played a role in how you judged the performances.  Nonverbal communication plays a huge role in our perception of credibility, likeability, professionalism and trustworthiness.  Among other things.

This begs the question: When giving notice for deposition, do you want jurors to evaluate the witness on substance only, or do you want them to experience the whole enchilada?

Each case is different and there are always unique circumstances to consider when making this decision, but as a general rule of thumb, I typically say “Heck yeah!” to giving notice for a video deposition.  Why?  Here are a few of my many reasons.

1. A deposition by its very nature is adversarial.  For witnesses, it is one of the most uncomfortable aspects of trial (if not the most uncomfortable).  Couple the multiple-hour interrogation with a video camera some eight feet away, and you’ve got yourself a nervous witness.  And nerves can work to your advantage.  Anxiety not only decreases comprehension, but it interferes with recall.  Not an ideal situation for the deponent– but for the questioning attorney?  It’s a bonus.
2. Video captures everything.  And I mean everything.  Each sigh, sip of water, eye roll, smirk, stutter and pause is captured.  And let’s not forget about tone, pace and pitch of the exchange.  Irritation and uncertainty come through loud and clear on video.  Not so much on paper.  These things are noticeably absent in a written transcript, but can have a huge impact on a person’s perception of credibility.  But take note:  as the questioning attorney, you may escape the camera (unless it’s a multi-camera shoot, which is rare), but you cannot escape the fact that your tone, your pace and your pitch will be captured as well.
3. Video deposition excerpts are ideal for mock jury research.  When it comes to conducting any form of jury research– small group, focus group, mock trial, etc.– presenting jurors with a videotaped witness will result in a much better assessment of that witness’s testimony.  Jurors will be able to comment how a witness’s credibility, demeanor, believability and trustworthiness factored into their perception of the facts.  This information can prove invaluable down the road when determining witness order for actual trial.
4. Video excerpts are persuasive tools for mediation and hearings.  We’ve prepared hundreds of mediation presentations that include excerpts from deposition videos.  We’ve also prepared a few short clips for counsel to use during Daubert, MSJ and other hearings.  Sure, the transcript works just fine.  But combining the substance with the style is much more powerful.
5. Presenting a witness by video increases juror attention.  Maintaining the jury’s attention is challenging during any trial, but reading a transcript into the record is a sure-fire way to bore them to tears.  A video witness is far more engaging for jurors, and with TrialDirector or Sanction, you can also include scrolling text and the actual exhibits.  (Of course, if the witness ends up being a rock star on video and you want jurors to zone out, reading the transcript may be the better option!)

There are a number of additional reasons why deposing a witness by video is a smart move, but at the end of the day?  Doing so provides you with a host of strategic advantages during discovery, settlement and trial.  Why not make the most of it?