YLD
President ’ s
COLUMN
The Need to Videotape Depositions for Civil Trial Lawyers
There are few things in legal life where I am absolutely convinced that there is a correct answer in preparing a case for trial . Everyone ’ s style is different , and a trial lawyer knows their client and case better than any other lawyer possibly can . And every trial lawyer will put a case together in slightly different ways , and each one has different preferences for how to present a compelling case to a decision maker .
That said , I am a puritan when it comes to videotaping depositions . And I believe every young trial lawyer should understand why .
For civil trial lawyers , the importance of videotaping ( almost ) every deposition cannot be overstated . Even though the cost of hiring a videographer can be hundreds of dollars more than simply hiring a court reporter , the potential impact and value of videotaping depositions is well worth the price . If you aren ’ t doing so , and I know some lawyers who aren ’ t , this article is meant to convince you otherwise .
First , an underappreciated feature of videotaping depositions is limiting and preserving the bad behavior of some opposing counsel . On video , coaching form objections or an unprofessional tone can be seen and heard by a judge in a comprehensive and fair way . On paper , it is simply harder to show misconduct . Additionally , a jury can see bad behavior on video if it is unable to be edited out of the video due to its persistence . If you take the professional road , and I hope you do , that benefits your client . Consequently , unless the deposition is simply to get information about where documents are or how an IT system is set up , it is worth videotaping every deposition for this reason alone .
Second , videotaping depositions impacts the witness . If a witness is delaying before answering questions , appearing unprepared , or making body language that clashes with their words , all these credibility cues are captured . On paper , the witness might look perfectly credible , but in person they are not . If there is no video , a good trial lawyer will woodshed that witness before they appear in front of a decisionmaker to minimize these tics and tendencies that diminish the witness ’ s credibility . But with a video , polishing a witness will inevitably backfire . The damage is done .
Third , videotaping depositions preserves testimony . If a witness becomes unavailable for whatever reason , at least you can use the video testimony for the jury . This reason will become more and more dominant over time , because of how our state court system seems to be on a course to become much more like federal courts . The recent shift in our summary judgment standard means that having trial-ready evidence on issues is important early in the case . The shift is even more stark when reading the recommendations of the
Workgroup on Improved Resolution of Civil Cases that is in its comment period now .
8 | THE DOCKET - APRIL 2022