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Monday, June 11, 2007
Preparation matters when videotaping depositions
A compelling tool is
available for litigators
who sweat the details.
By Linda Dakin-Grimm
and Alyssa Rower
special to the national law journal
in which the average adult
is more likely to have seen the last episode
of American Idol than to have read The
Grapes of Wrath, and the average child
prefers video games to bedtime stories, it
should come as no surprise that the use of
multimedia tools is essential to success in
trial or arbitration. Many commentators
have recognized the importance of
using modern technology to persuade
a judge, jury or panel of arbitrators.
The American Bar Association has even
created a Web page designed to guide
attorneys through this “technological
puzzle,” available at www.abanet.org/
tech/ltrc/courttech.html. Paradoxically,
however, few attorneys effectively put
these techniques into practice, instead
operating under the misconception that
compelling rhetoric alone is enough
to win.
One widely overlooked strategy that is
both highly persuasive and cost-effective is
the use of integrated videotaped depositions
to impeach a witness’s credibility. While
many litigators videotape depositions,
in a society
Linda Dakin-Grimm is a partner, and
Alyssa Rower is an associate, in the litigation
and reinsurance practice groups at Milbank,
Tweed, Hadley & McCloy. Dakin-Grimm
practices in the firm’s Los Angeles office,
and Rower in its New York office. They can
be contacted at [email protected]
and [email protected], respectively.
Linda Dakin-Grimm
Alyssa Rower
few actually maximize the use of the
videotapes at trial. With a few extra steps,
these videotapes can become a compelling
and invaluable impeachment tool.
As with any deposition, the key is
thorough and careful planning. The
questioner must be familiar with the
whole universe of documents in the
case and understand the interplay of
the various issues—before the deposition
begins. The questioner himself or herself
must read every document and determine
in advance of the deposition which
documents are most likely to be useful
at trial. While some litigators choose
to organize a deposition by issues or
topics, for purposes of trial impeachment,
it is often more effective to examine
the witness chronologically, creating a
“story” that will translate well for trial.
Strategic considerations
There are a few strategic matters
the questioner should keep in mind
when taking a videotaped deposition
for purposes of trial impeachment. The
questioner should ask the questions
precisely the same way he or she will at
the trial, with each question standing
on its own—and avoid falling into a
conversational style and assuming
that portions of the question will be
understood from the prior question. Such
a conversational style does not create
impeachment. It is important to go slowly
and think through every question—
the questions should be thorough and
complete in themselves. The questioner
must phrase questions so that they can be
translated into complete and crisp video
clips later on. Thus, “And then what?”
becomes “What did you do after pushing
the victim down the stairs?” This ensures
that a single question and answer can
be turned into a video clip that will not
require five minutes of questions and
answers for context.
While one of the objectives in a
videotaped deposition is to elucidate an
adverse witness’s true colors, attitude,
tone of voice and defensiveness, the flip
side is that the questioner needs always to
keep his or her own “true colors” in mind.
It is especially important to be cool, calm
and polite in a videotaped deposition,
because the questioner will be as much
“on stage” as the witness when the video
clips are played at trial. The questioner
must maintain the same personality and
demeanor during the deposition as he or
she will present at trial.
Technical details must be addressed in
advance. The selection of a professional
videographer who carefully monitors
video and audio quality is essential. The
backdrop for the witness should be kept
simple and the lighting must be bright,
soft and even. Background noise (and
interference from BlackBerrys and other
electronics) must be eliminated.
When preparing one’s own witness for a
videotaped deposition, the witness should
be advised that he or she cannot expect
to present a defensive personality on the
videotape, but be more forthcoming and
effusive at trial. The standard deposition
Monday, june 11, 2007
The National Law Journal
preparation advice, to “just answer the
precise question asked,” may not be
appropriate, as it could appear that the
witness testifying at trial is two-faced—
not the same person who testified in
deposition. One’s videotaped deposition
witness similarly should be made aware
of nonverbal behavior, tone of voice and
attitude. The witness should be made to
understand that he or she cannot expect
to bring a different, more cooperative
personality to trial. After the deposition,
the attorney should have the witness
study the videotaped deposition before
the trial so that his or her answers and
demeanor remain consistent.
Once the videotaped deposition is
complete, the tape must be obtained
in an MPEG2 digitized format with a
sync file to enable the selection of short
impeachment clips. There are third-party
vendors and trial support companies that
can assist with this process. Although
a litigation technology consultant may
be needed to convert and format the
videotape, a tech-savvy attorney or
legal assistant can then actually prepare
the clips quite quickly, using a trialpresentation program. This process
enables the trial lawyer to pick and
play clips selected, even during an
opposing witness’s direct examination,
and to display the transcript text on
the presentation screen below the
witness’s image.
Short and sweet
The impeachment video clips should
be kept short and sweet, given the typical
juror’s attention span. The trial attorney
who will examine the witness must
personally and carefully go through the
deposition transcript to select questions
and answers to be made into the clips.
This critical preparation work simply
cannot be delegated to someone else.
At trial, the questioner must ask the
questions precisely as they were asked
during the deposition. It is also more
persuasive if the documents bear the
same exhibit numbers in deposition and
at trial.
The use of videotaped depositions to
impeach a witness’s credibility at trial has
a dual effect: It persuades the audience
(judge, jury or arbitrator) while also
persuading the adverse witness that the
questioner has complete command of
the testimony. As one trial attorney who
regularly uses video of key deposition
testimony during trial has pointed out,
“[i]t is devastatingly effective to have
a witness say one thing and show a
video of them saying another thing
during the deposition.” See Peter Hall,
“Opening Act: Lawyers are Trying Video
in Statements,” 29 (4) Pa. L. Wkly.,
November 2006, at 2.
The use of video clips to impeach has a
much greater impact on an audience than
simply reading a passage of the transcript
into the record. It is well established
that individuals are better able to learn
and integrate information when it is
presented both visually and orally.
“Studies show that the use of visual
aids to assist in oral presentation can
‘facilitate comprehension [and] increase
understanding and retention levels by as
much as sixty-five percent. Additionally,
information which is perceived by the
individual from a variety of methods
(aural, visual and written) is retained
and understood at a substantially higher
level.’ ” J. Bradley Ponder, “But Look
Over Here: How the Use of Technology
at Trial Mesmerized Jurors and Secures
Verdicts,” 29 L. & Psychol. Rev., Spring
2005, at 291. Accordingly, the attorney
who impeaches with videotape is
much more likely to put a lasting and
memorable dent in a witness’s credibility
than the attorney who relies on
reading testimony.
The second major benefit of using
videotaped deposition clips during a
hearing or a trial is their effect on the
witness. No matter how well prepared, a
witness will be taken aback the first time
he or she sees a video clip of himself or
herself saying something different from
what he or she has just said under oath.
Very shortly, the witness experiences
such cognitive dissonance that he or
she begins to give the answers he or
she thinks the questioner wants—simply
to avoid seeing ­ another clip. Indeed,
even the most disagreeable and stubborn
witnesses sometimes start to cooperate in
the examination, after being impeached
several times. And, if they continue to
force the playing of more video clips,
they only appear more contrary and less
credible to the audience. Either way, it is
win-win for the prepared lawyer. nlj
Reprinted with permission from the June 11, 2007 edition of
The National Law Journal © 2007 ALM Properties, Inc. All
rights reserved. Further duplication without permission is
prohibited. For information, contact 212-545-6111 or visit
www.almreprints.com. # 005-06-07-0027
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