This Isn’t YouTube: Preparing and Choosing Clients for a Video Deposition

Many people have spent more time than they would like to admit watching funny videos on YouTube. The sending and sharing of email clips is a testament to the effectiveness of video to make a point—and demonstrates the growing trend of using video in court to appeal to a jury’s emotions.

There are many benefits of using video depositions: they are more engaging than reading text off of a page, and they allow the jury to see a witness as a person rather than a collection of facts. However, it’s not enough to present a video testimony—it has to be a testimony that will work in your client’s favor, and there are many potential factors working against you.

How to Prepare an Effective Video Deposition

  • Body and language. Just because a testimony is not “live” does not mean the witness can act however he wants during a deposition. Juries and opposing counsel will react to visual cues, body language, eye contact, word use, and every other facet of the witness on video just as they would if he were in court. You should advise your client in the use of non-verbal cues, language choices, and appearance before recording.
  • Video quality. Technology is advancing by leaps and bounds, with new video equipment springing onto the market overnight. You should take care when choosing a video host and software for your depositions, as blurry or pixelated video will hide the nuances of your witness’s testimony. While a webcam or even a camera phone app may be good enough for YouTube video creators, the video quality may not be acceptable for court use.
  • Wired for sound. Speaking into a microphone may be acceptable in the witness box, but a recorded deposition should place greater emphasis on sound quality. Your video recording vendor should offer clip-on microphones to eliminate as much background noise as possible, or at least optimize mics with windscreens, secure mounts, and separate recording channels for each speaker.
  • Choosing witnesses. While any witness can record a video deposition, your client will benefit by choosing witnesses wisely. For instance, most attorneys know that video depositions should always be used when witnesses may be unavailable for trial. But videotaping the testimony of a credible and likable witness can also influence the jury in your client’s favor—without risking a bad cross-examination in court.
  • Setting the scene. You are responsible for lending a director’s eye to your client’s deposition. Step behind the camera: is there a distracting background? Would your client benefit more from a close-up on just his face, or should you pull out and frame his shoulders and hands?

Remember: YouTube videos are great because they are spontaneous, while video depositions require careful planning to be effective.

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