December 01, 2017 Technology

TAPAs: Tips for Video Depositions

By Jeffrey Allen and Ashley Hallene

Video depositions have grown more and more common. As video depositions involve some factors not present in a traditional deposition, we thought you might like some tips about how to defend a video deposition.

Tip 1: Prepare your witness properly. Preparation of your witness for a video deposition is a different process than preparation for the traditional audio deposition reported solely in a written transcript. Although deposition testimony can come in to impeach a witness at trial, many attorneys use the deposition as a rehearsal for testifying at trial. Putting aside whether this is a good strategy, you should not do it when dealing with a video deposition. With a video deposition, the jury will get to see your witnesses and observe their appearance and their behavior at the deposition, so you need to pay attention not only to what the witnesses say but also to how they appear, just as you would do for trial. Accordingly, in your preparatory work, you should provide advice to the witness about dress and mannerisms (watch out for body language). In some cases, particularly with a witness who has unhappy mannerisms, you may find it useful to do a pre-deposition deposition that you record with a video camera. Let your witnesses see how they look. For some it will prove a revelation.

Tip 2: Move toward the light! No, this does not intend to suggest dying or dealing with post-mortem phenomena that you might encounter. The simple fact of the matter is that whenever you deal with any type of photography, lighting plays a critical role. Video depositions involve photography, so lighting becomes an issue. Although we are not suggesting that you become a professional photographer, we do think you need to get a basic understanding of lighting (or have someone on your staff who does). You want to make sure that your witnesses look their best, so ensure that they get favorable (usually frontal) lighting. If you have any question of how bad lighting can make a witness look, watch the video deposition of Bill Gates in the Microsoft anti-trust case. You can find it online. When you watch it, look at how the lighting seems to demonize Gates.

Tip 3: Look through the camera. Again, we do not suggest that you need to learn the skills of a professional photographer, but you do want to see your witness as the camera will see him or her. The time to make an adjustment is before the deposition commences.

Tip 4: What about makeup? Professionals use makeup when they appear on camera. They do this for a reason. Appearing on camera without makeup can make a person look worse than they do in real life. Makeup can prevent this from happening or minimize the effect. This is an issue for both men and women. If your client balks at using makeup, remind your client that actors, actresses, politicians, and most others who regularly appear on camera use makeup. If you decide to have your client use makeup for the video deposition appearance, make sure that someone who knows how to properly apply makeup takes responsibility for the application.

Tip 5: Make sure the camera only focuses on the witness. The deposition focuses on the witness. So, should the video transcript. You do not need or want the person behind the camera panning around the room and including pictures of the attorneys or the court reporter. The camera should focus exclusively on the witness from beginning to end. Take the time to talk to the videographer to ensure that this will occur.

Bonus Tip 6: Use a professional videographer. The video transcript you will get from the deposition is at least as important as the reporter’s transcript you will get. Whether you take or defend a video deposition, you will find that, as a general rule, a professional videographer will produce a better result for you. Of course, you need to check with your state laws respecting video depositions and must comply with those as well.

A video deposition can prove a very useful technique for discovery. Learn how to use it wisely and how to deal with it effectively.

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Jeffrey Allen is the principal in the Graves & Allen law firm in Oakland, California, where he has practiced since 1973. He is active in the ABA (particularly in the GPSolo and Senior Lawyers Divisions), the California State Bar Association and the Alameda County Bar Association. A frequent speaker on technology topics, he is Editor-in-Chief of GPSolo magazine and GPSolo eReport. He serves as an editor and the technology columnist for Experience Magazine and has served on the Board of Editors of the ABA Journal. He also serves on the ABA’s Standing Committee on Information Technology. Recently, he coauthored (with Ashley Hallene) Technology Solutions for Today's Lawyer and iPad for Lawyers: The Tools You Need at Your Fingertips. In addition to being licensed as an attorney in California, he has been admitted as a Solicitor of the Supreme Court of England and Wales. He teaches at California State University of the East Bay. He may be reached at jallenlawtek@aol.com.

 

Ashley Hallene is a petroleum landman at Alta Mesa Holdings, LP, and practices Oil and Gas law, Title Examination, Due Diligence, Acquisitions and Oil and Gas Leasing in Houston, Texas. She maintains a diverse solo practice on the side. Ashley is the coauthor of the technology overview Making Technology Work for You (A Guide for Solo and Small Firm Attorneys) along with attorney Jeffrey Allen. She has published articles on legal technology in GPSolo Magazine, GPSolo eReport, and the TechnoLawyer Newsletter. Ashley is an active member of the American Bar Association’s General Practice Solo & Small Firm Division, ABA’s Young Lawyers Division, the Texas Young Lawyers Association, the Houston Young Lawyers Association, and the Houston Association of Petroleum Landmen. She frequently speaks in technology CLEs and is Deputy Editor-in-Chief of the Technology and Reviews Department of the GPSolo eReport. She may be reached at ahallene@hallenelaw.com.