Article: August 2015: Trial Practice Update

Use of Video Testimony at Trial. There’s an old saying that a picture is worth a thousand words, and a newer saying that a video is worth a thousand pictures. In our experience, this is especially true in jury trials, where members of the community from all walks of life may be called upon to determine spectacularly complicated disputes in which huge amounts of money, careers, a company’s future, or even someone’s liberty could turn on the outcome. Videotaped prior testimony can make or break parties’, witnesses’ and even lawyers’ credibility and can be case-dispositive. In this internet age full of smart phones, social media and the like, it is beyond dispute that people receive and absorb most information visually and are not the readers or listeners they once were. People’s comfort about making snap decisions about who is good, who is bad, who is believable and who is not, has elevated the importance and impact of the visual image of a witness that testifies at trial by videotape. It is striking how often even the most sophisticated litigants and witnesses regularly testify in deposition that the traffic light was green, but at trial have realized that they need the traffic light to have been red to prevail. Confronting adverse witnesses with contrary sworn testimony is as good as it gets for trial lawyers, but reading questions and answers from a transcript is far from optimal. The best cross-exams are sometimes as simple as pressing “play.”

The original use of videotaping depositions was in personal injury matters where the treating physician would be deposed and recorded so as to avoid having the doctor wait around in a courtroom for full days to testify instead of attending to medical necessities. Soon the practice spread to certain third party expert witnesses for the same reasons. From there the practice gained momentum and was used to record a witness’s testimony who, because of health concerns or other reasons, could not be relied upon to give his or her testimony live at a trial set sometime in the future. And in litigation involving witnesses residing in various states and even various countries, videotaping depositions became virtually standard practice because the deponents, many of whom were former employees of large companies, were outside the trial court’s jurisdiction to compel attendance and would be unavailable. Video testimony has routinely become a substitute for trial testimony. See F.R.C.P. 30(4).

At trials, counsel expanded the use of video testimony from merely a substitute for testimony of an unavailable witness to impeachment of a witness called live to testify at trial. This was done by examining a deponent in an effort to make key points or admissions which, if denied or minimized at trial, could be played to the jury on videotape right after the “live” question to demonstrate this conflict. F.R.C.P. Rule 32(a) states “any party may use a deposition to contradict or impeach testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence.” Seeing this contradiction of the in-court testimony of a witness and that made earlier on videotape side by side has an immediate and effective impact on jurors. In accomplishing this effective examination, it becomes important that the questions on both the video and at trial be short, and that the answers sought to be impeached by the video deposition be indeed contradictory. Otherwise it may not be permitted.

In the present climate, a new use of a video deposition of the key witness has evolved. This is known as “impeachment by demeanor.” Most commonly, trial counsel attempts to employ this tool by playing an unflattering visual to the jury of a key witness’s testimony in opening statement so that this visual begins to have a negative effect on jurors at the very outset of the trial. This would include evasiveness on tough questions or conduct appearing insincere. Whether or not such use of deposition video is permitted is solely up to the discretion of the trial judge. The further away the video testimony is from key issues in the case, the less likely it will be permitted. The more central the testimony is to key issues, the better chance it may be allowed. Since the opening statement is to be based on “what the evidence will be at trial,” a successful proponent of playing this excerpt must show its admissibility at trial (relevance, etc.) and be sure the excerpt is actually played during the trial. To prevent the playing of these video excerpts out of context, F.R.C.P. 32(a)(6) provides that, in those circumstances, “an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced . . . .”

Although the judge is the gatekeeper of the use of this “impeachment by demeanor” in the opening statement, the witness being deposed with the help of his counsel can minimize this risk through his or her conduct at the deposition. Over the years, certain mannerisms which negatively impact credibility have been recognized. A few examples include: (1) laying back or slumping in the witness chair; (2) swiveling from side to side or rocking back and forth; (3) constant drinking of water when asked pointed questions; (4) looking at the witness’s counsel when tough questions are asked; (5) and the long, long pause before answering, “I don’t recall.” The jury believes that this lawsuit, which they are compelled to sit through, single most important event in the witness’s life as well, and even the highest level executive in the company is expected to have a reasonable response to all questions asked of him concerning this matter. All of these risks can be reduced through thorough deposition preparation, which does not only involve a discussion of what a deposition is and the witness’s factual role in the case, but also spending time on minimizing the negative demeanor issues by emphasizing conduct which reinforces credibility. These would include leaning forward in your chair, looking at the questioner and responding to the question clearly and succinctly. Often this preparation may involve videotaping a witness during his preparation so he can see for himself his own demeanor and realize the impact that such demeanor could have. The goal should be for your witness to have the exact same demeanor at deposition as at trial, and on direct as on cross.

The preparation should also include a discussion of what the witness should wear at his videotaped deposition. The goal is always to look respectful, professional and credible. Experience shows that these goals can be hindered by even the most mundane things such as wearing plaids, stripes, busy ties or extravagant jewelry. It is preferable that the witness avoid wearing black or white clothing that can also be disruptive on the camera exposure. Solid colors such as blue are ideal.

Finally, it is essential that the witness maintain a professional and courteous tone and demeanor throughout the deposition no matter how bombastic or belligerent the questioner becomes. No doubt the questioner is seeking sound bites to play for the jury. This type of detailed deposition preparation can minimize the risks of a witness at trial being misjudged or misread by any inadvertent conduct at the deposition.