
If a picture says a thousand words, a long pause can say just as many. When you are deposing a witness and you do not videotape it, those long pauses, those eye rolls, those incidents of the witness looking at his attorney as if to ask for the answer, the snarl, the frantically trying to find the answer in a document, none of that is reflected on that dry and boring paper transcript. And if you go to trial and you read that deposition into the record, or even parts of it, you might as well just give the jurors a blanket and pillow for that nap they are about to take. Time and time again, I have watched those depositions being read, and the jurors did not get one thing from it. They don’t listen, some of them can’t hear, some of them can’t comprehend things that are oral, and let’s face it, we are in a digital age, and jurors expect to SEE something.
Even an adjuster can be swayed by how well or poorly a plaintiff or defendant’s testimony is, and they will use that to evaluate the value of the case. If you have a plaintiff with a good case, yet they can’t tell the story to save their life, then that case value just went to pot. If you have a defendant with a great defense, but they act like a total jerk, or they seem sketchy, you’ve just lost your defense.
In an actual deposition, we once had a deponent testifying as to how their shoulder was so injured that they couldn’t do hardly any household tasks, including putting a gallon of milk into the refrigerator, run the vacuum, those type of things. Later in the deposition, the deponent’s cell phone rang, and she whips her injured shoulder around, grabs a large and obviously heavy purse, throws it up on the table, all without indicating one bit of pain. If that deposition had been videotaped, the case would have been over. But it wasn’t…. (Click here to see re-enactment)
Consider this example as told by John Fisher, P.C., who does medical malpractice. “In a birth asphyxia case that I handled ten years ago, I learned why videotape is crucial for a deposition. In the deposition of a labor and delivery nurse, the question posed was whether good and accepted nursing standards required the nurse to notify the physician when confronted with non-reassuring fetal heart tracings. The ob nurse paused, then looked up at the ceiling (as if looking for an escape hatch), and then she finally answered, “That depends.” The answer was meaningless, but the way that he answered the question was pure gold.
When the lawsuit went to trial and I played the videotape of the nurse’s deposition testimony, I watched the expressions on the jurors’ faces as they saw the nurse cringe while answering the question. After the trial concluded, the jury later told me that the nurse’s answer to this single question was the reason they had decided to side with the plaintiff. Let’s get this right: a $400 videotape deposition provided the basis for a multiple seven figure recovery ($4.1 million to be exact).
The videotape brings the deposition to life and keeps the jury interested, while the read-back of a deposition is boring, uninteresting and has no impact on jury deliberations. Juries snooze through the read-backs of depositions and I have not seen, or heard of, single case where a jury based its verdict on a read-back of a deposition.”
Here are eight reasons to videotape every deposition:
All of the above factors should be considered in your decision-making process regarding the setting of a deposition as a videotape deposition or a regular deposition. And don’t forget to notice your deposition correctly. We recommend that you simply never fail to consider taking a given deposition as a videotape deposition (and this holds true with the filing of a “cross-notice” of a deposition taken by another party, as you may well want it videotaped).
Don’t kick yourself the next time a witness blows up in a deposition and you didn’t have it videotaped. Capture those emotions and demeanor so that your settlement offers come faster and are worth more. If every case is important, you should videotape every deposition.
Schedule your next videotape deposition with Realtime Reporters and ask for our 10 percent discount for the videos for that entire case!
Even an adjuster can be swayed by how well or poorly a plaintiff or defendant’s testimony is, and they will use that to evaluate the value of the case. If you have a plaintiff with a good case, yet they can’t tell the story to save their life, then that case value just went to pot. If you have a defendant with a great defense, but they act like a total jerk, or they seem sketchy, you’ve just lost your defense.
In an actual deposition, we once had a deponent testifying as to how their shoulder was so injured that they couldn’t do hardly any household tasks, including putting a gallon of milk into the refrigerator, run the vacuum, those type of things. Later in the deposition, the deponent’s cell phone rang, and she whips her injured shoulder around, grabs a large and obviously heavy purse, throws it up on the table, all without indicating one bit of pain. If that deposition had been videotaped, the case would have been over. But it wasn’t…. (Click here to see re-enactment)
Consider this example as told by John Fisher, P.C., who does medical malpractice. “In a birth asphyxia case that I handled ten years ago, I learned why videotape is crucial for a deposition. In the deposition of a labor and delivery nurse, the question posed was whether good and accepted nursing standards required the nurse to notify the physician when confronted with non-reassuring fetal heart tracings. The ob nurse paused, then looked up at the ceiling (as if looking for an escape hatch), and then she finally answered, “That depends.” The answer was meaningless, but the way that he answered the question was pure gold.
When the lawsuit went to trial and I played the videotape of the nurse’s deposition testimony, I watched the expressions on the jurors’ faces as they saw the nurse cringe while answering the question. After the trial concluded, the jury later told me that the nurse’s answer to this single question was the reason they had decided to side with the plaintiff. Let’s get this right: a $400 videotape deposition provided the basis for a multiple seven figure recovery ($4.1 million to be exact).
The videotape brings the deposition to life and keeps the jury interested, while the read-back of a deposition is boring, uninteresting and has no impact on jury deliberations. Juries snooze through the read-backs of depositions and I have not seen, or heard of, single case where a jury based its verdict on a read-back of a deposition.”
Here are eight reasons to videotape every deposition:
- Accurately preserves the testimony. Most communication face-to-face is nonverbal. The regular deposition does not indicate much of anything with respect to mannerism, tone of voice, attitude, demeanor, poise of the witness, hesitation when responding, and much, much more. You MUST catch the “how” and not just the “what” of what is being said.
- Vague and obscure answers are usually eliminated. Witnesses who are being taped tend to be more direct, answer with more detail and as if they are speaking to the judge and jury.
- Shenanigans eliminated. The videotape deposition eliminates virtually all of the shenanigans and games played by some attorneys in depositions. {Click to see example}
- Judge and jury appreciation. Judges and jurors appreciate watching a deposition on video much more than having it read to them in whole or in part.
- Impeachment intensity increased. A video clip is far more effective and it significantly increases the intensity regarding impeachment of a witness.
- Witnesses’ activities captured and demonstrative evidence utilized more effectively. In many depositions, witnesses are asked to point to certain areas on their bodies. Sometimes they are asked to give demonstrations. In other instances, witnesses in deposition are asked to draw sketches of scenes. The list goes on and on. All of these activities are preserved completely in the videotape deposition. Unfortunately, they are only “described” by lawyers in the regular deposition by the classic phrase, “Let the record reflect that the witness has…..” and many times there is nothing in the record about these activities at all.
- Opposition attention-getter. Your opposition knows you are serious about the litigation and trial of your case when you start taking depositions by videotape.
- Atmosphere change. The atmosphere within which a videotape deposition is taken is ordinarily far different from the atmosphere of a regular deposition, being more formal, more intense, more serious, and more like the atmosphere in an actual courtroom where a judge and jury will be present.
All of the above factors should be considered in your decision-making process regarding the setting of a deposition as a videotape deposition or a regular deposition. And don’t forget to notice your deposition correctly. We recommend that you simply never fail to consider taking a given deposition as a videotape deposition (and this holds true with the filing of a “cross-notice” of a deposition taken by another party, as you may well want it videotaped).
Don’t kick yourself the next time a witness blows up in a deposition and you didn’t have it videotaped. Capture those emotions and demeanor so that your settlement offers come faster and are worth more. If every case is important, you should videotape every deposition.
Schedule your next videotape deposition with Realtime Reporters and ask for our 10 percent discount for the videos for that entire case!