Videotaped Depositions

Having recently finished a trial where videotaped depositions were used extensively, the following is some practical advice for both taking and defending videotaped depositions.

First, under California law, any deposition may be videotaped provided that the Notice of Deposition indicates the intent to videotape that deposition.  [CCP §2025.220(a)(5)].  Further, with any videotaped deposition, there are certain necessary practical requirements under CCP §2025.3430, including (a) the site for the deposition must be “suitably large, adequately lighted, and reasonably quiet”; (b) the operator of the recording of the recording equipment must be competent [CCP §2025.340(b)]; and the operator must not employ any special effects to distort the demeanor of the participants. [CCP §2025.340(g)]

From a practical standpoint make sure that your client is appropriately dressed.  Presume that the videotaped deposition will be shown to the jury and have the client dress for that purpose.  As an example, one of the witnesses in the recent case wore an orange short sleeve shirt to his deposition which was almost identical to the jump suits that prisoners wear when they are in the dock.  Not a good idea!

Have the client practice being videotaped.  The client should look at the questioner and answer the question in a straight forward fashion.  Long pauses or looking over to  defending counsel before answering look terrible when the videotape is played back.

As to attorney conduct, if you’re the defending attorney don’t interject yourself into the questioning.  Otherwise, it may be your question of your own witness that gets played back.

As the attorney taking the deposition, be polite.  Remember that your questions will be played back in front of 12 jurors.  If you act like a jerk, the jurors are going to know it.  However, do not be too nice.  Joking with the witness or being too informal also does not look good on the videotape.

Get sound bites.  You will never, under any circumstances, play the entire deposition.  More likely you will play small portions of it when examining the witness or in your opening statement or closing argument.  That means getting the full question and a concise answer before moving on.

Make sure that on the videotape you lay the foundation for why the witness is there.  If the witness is being called as a person most qualified under CCP §2025.250, have them indicate that fact on the record, and explain on the record what that means and the topic that they are being examined on so that it’s clear to the jury that the witness understood it.

Finally, don’t save all of your best cross-examination for trial.

CCP §2025.620(c)(1) provides that when a deponent is more than 150 miles from the place of trial, any party may use that deposition.  Thus, all of the  “set up” questions you asked with the intention of compelling cross-examination at trial may be played by your opponent with no chance for you to respond.  Remember also that, if a case takes a long time to get to trial, witnesses disappear.  Therefore, the only record you may have is all the “nice” questions asked of a hostile witness without ever getting to what you thought would be devastating cross-examination.

Finally, in order to use your videotaped deposition at trial you should establish a protocol either by stipulation or motion that allows you to clear up any objections or proposed additions to videotaped testimony efficiently.  We eventually settled on the procedure of sending the other side the proposed deposition testimony, having the opposing side respond within two days with any objections, and then, the following day, having the court rule on those objections so the videotape could be played.

When using the videotaped deposition at trial remember depositions are BORING!  Edit, edit, edit, and then edit some more.  If your videotape is more than 15 minutes in length, it is too long.  Nevertheless, videotaped depositions are far more powerful than the old method of reading in testimony.

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