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Video depositions can be a compelling trial tool

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Indiana Lawyer Focus

Like a pesky fly that buzzes around the room incessantly, the question kept being asked and no amount of answering would chase it away.

“Where did the idea come from?” “Where did you get the idea for your invention?” “How did you think of this mechanism?”

The deposition was becoming tedious with the inventor, only fluent in Russian, trying to explain the origin of his creativity while the interpreters searched for the words to properly translate what was being said.

video-stevengroth-7-15col.jpg Bose McKinney & Evans LLP partner Steven Groth (center, right) demonstrates a video deposition. Attorneys say cameras capture the body language and vocal inflections that witnesses exhibit while being deposed. (IL Photo/Eric Learned)

Finally, the inventor stood up, tilted his head back and raised his arms to the ceiling. To the persistent question of, “How did you think of making this device?” his body language answered, “From God.”

Videographer Pete Zinkan captured the entire episode with his camera. Although a court reporter could also have recorded the incident, a juror would have more clearly understood the inventor’s meaning by watching the video clip rather than by seeing an attorney reenact the response in a courtroom.

The ability to catch the nonverbal messages and vocal inflections made by witnesses and experts are the biggest benefits to videotaping depositions, attorneys say. A slouch, a gulp, a snide tone of voice can bring added meaning to the testimony that cannot be conveyed through a cold reading of the transcript.

Judge Ken Johnson, master commissioner for the Marion Superior Mass Tort Docket, does not believe that showing a video segment as opposed to reading from the deposition transcript could bias a jury. So many elements can be part of a trial that attributing a verdict solely to the video deposition is difficult.

groth-steve-mug Groth

Johnson applauds the use of video depositions at trial. The digital tape can be edited so the objections, arguments and inadmissible statements which can confuse or improperly influence jury members are removed before the video is shown in court. Also, the film can improve the efficiency of the trial since the testimony of the expert can be played at will instead of wasting time waiting for that individual to arrive.

“I think they are great in every way especially because jurors can see the person, can see how they react and see their face,” Johnson said. “Video depositions are a hundred times better than hard copy depositions.”

Paper versus picture

Not all depositions need to be taped, attorneys say. Non-party witnesses who provide factual information but are not especially significant to the case likely will not be recorded on video.

Still, the use of cameras to record depositions has been increasing. Bose McKinney & Evans LLP partner Steven Groth sees two primary drivers behind the growth.

The first reason is the powerful tool that video depositions can provide to impeach a witness at trial. Any time an individual says something on the stand that is inconsistent with what he or she said while being deposed, the attorney can just hit the play button and instantly the jury can see and hear the witness on a screen in the courtroom.

The second reason is sophisticated clients want the depositions taped so they can watch later. Executives and business professionals who understand the legal process want to see the video to do their own evaluation of the case.

Relying only on the attorney’s description may not provide the information that the client wants, Groth said. But the video shows exactly what happened.

ladendorf-mark-mug Ladendorf

Video technology is also providing attorneys with a long-distance conferencing option. The lawyers can walk to their offices’ meeting rooms and depose a witness or expert who is across the state or across the country.

Mark Ladendorf of Ladendorf Law said video conferencing saves time and money. Conferencing does not work as well for depositions that are expected to last all day or that will be especially complex, he said, but in many instances the video link is just as good as being there in person.

As an example, he pointed to a lawsuit involving an elderly couple he represented who had been in an accident in West Virginia. Since travel was difficult for the couple, Ladendorf and opposing counsel agreed to do the deposition via video.

The video of the witness in West Virginia was transmitted to a screen in the Indianapolis conference room where Ladendorf sat with his clients. Likewise the parties in the Mountain State could see the Hoosier group on a monitor at their offices.

“We saved two days of travel, we saved two days of expenses, we saved a flight and my clients got to go home two hours after the deposition,” Ladendorf said.

Technological advances

Johnson remembered when video depositions first appeared in the early 1980s. They were rarely used in court because the image was grainy and the sound bounced in and out.

Since then, the technology has improved so much that attorneys are using video more and more, Johnson said.

Listing the array of microphones along with the mixer, camera and computer that he uses when recording a deposition, Zinkan compared his work to that of a pilot – hours of boredom interrupted by a sudden emergency that needs to be fixed immediately.

He will wear a set of headphones and keep his eyes scanning the instruments, watching the needles to catch any disruptions. Sound, Zinkan said, is as important as the picture, so any audio interference has to be corrected to allow the jury to be able to understand what the witness is saying.

“It’s the details that videographers need to pay attention to,” Zinkan said.

After the deposition is completed, Zinkan goes back to his studio and syncs the written transcript with the video. The final product will display the image of the witness with the written statements appearing at the bottom of the screen.

vink-paul-mug Vink

The video camera does not change the way lawyers and witnesses interact in a deposition or impact the way lawyers prepare a case.

Yet, Paul Vink, partner at Bose McKinney & Evans LLP, said attorneys do need to be mindful that the video could be shown at trial. Regardless of how smart and polished a witness may be in court, opposing counsel will find a way to get the recording admitted at trial if that same witness was combative, smug or bumbling during the deposition.

And just like he advises before a trial, Vink reminds his witnesses before a video deposition to be polite, articulate and try to answer questions the same way as they would in front of a judge and jury because the tape may be played in court.

Juries remember what they see on the screen, Vink said. Watching a deposition video of witnesses contradicting what they just said in court or angrily lashing out the opposing party will be more compelling and memorable for the jury than listening to an attorney read the deposition transcript aloud.•

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