Using Deposition Video in Trial

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"Congratulations to Ted Brooks of The Court Technology and Trial Presentation Blawg on winning our LitigationWorld Pick of the Week award: Tips for Using Video Depositions at Trial"

There are several ways in which deposition video designations may be used in trial. The first and perhaps most frequently used technique would be using it for impeachment purposes. When compared with reading back some testimony of a solid impeachment, playing that same section as a “clip” can easily pack twice the punch. After explaining the deposition process and that the witness was under oath during the deposition as well as now in court, watching the same person tell two different tales can immediately cause jurors to seriously consider the credibility of the witness. I have actually seen the demeanor of a confident witness change when they have to face themselves on the big screen – and then face the jury.

Another common reason for using deposition video is the absentee witness. If, for some reason a witness is unavailable to testify “live” during trial, their depo may be used. The typical procedure for presenting the absentee witness is for the party calling the witness to first mark their designations. Next, opposing counsel marks their counter-designations, followed by both parties marking their objections to be submitted to the Court for ruling. Additional steps in the “Meet and Confer” process might include one party marking their direct, opposing then marking both counter and cross, and then the other party marking rebuttal designations.

Once the Court has ruled, the resulting designations are generally played back in the order they occurred during the actual depo, regardless of which party has designated what. Otherwise, one party could get left with little more than a bunch of “sound-bites” with no real context. To play them with the added context could result in playing portions of the depo twice – probably not the best use of the Court’s time.

In order to make all of this happen, the video is synced to the transcript text, allowing one to quickly prepare and play depo video, simply by selecting (and quickly editing) the transcript text. Preparing video depo clips is as simple as entering the pages and lines of the desired designation. While it could easily take a matter of several minutes to do this with a video editing program, it takes only a matter of seconds, using something like TrialDirector.

TrialDirector offers a number of options for playback of deposition video. I have prepared an explanation of all of these for counsel in a recent case, so I will now share that with you here.

Classic -- This is the way we used to do it with earlier versions of TrialDirector. It still works fine, but reduces the video display a bit, compared with the newer closed-caption option.

Classic 2 -- Here we are showing more text and less video. This could be a good option where the text needs extra focus, such as with a witness speaking another language with an interpreter.

Closed Caption -- This is the format we use most often nowadays when we need to display text. This gives a large video image, and includes the scrolling text.

Closed Caption - 2 -- Offers a smaller video display with the same amount of text as the Closed Caption option. This can be helpful when the lower edge of the video display is important, such as for showing a witness’ hand movement, time/date display, etc.

Video Only -- This is another method we frequently use when text display is not desired.

Transcript Only -- This format may be used for audio recordings, offering a helpful script for jurors to follow. Alternatively, you can also use a blank screen, or blank screen with scrolling text.

Overlay -- This is a nice option when the text is critical, although the video image is pretty small – showing quite a bit of text yet to be spoken. This can be used effectively when a witness speaks another language and uses a translator.

Overlay 2 -- Similar to above, but shows less text not yet spoken, more text already spoken. The disadvantage with this option is that the viewer sees only part of the text which has not yet been played, perhaps actually causing distraction, as a juror attempts to read what is not yet displayed.

Each of these options mentioned above can be easily enabled by toggling a preference setting. The format you choose should consider what is important for jurors to see - video, transcript, or exhibits. Other special circumstances should also be considered, such as translations, and poor audio or video quality.

You can display the deposition video along with the full text of the designations, and can also add the exhibits at the same time. This requires setting up both video and exhibits for display in advance or can be controlled as-needed during trial. This is very effective for displaying the (admitted) exhibit to the jury as the witness discusses it.

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