Although our judicial system historically prefers live witness testimony over testimony of witnesses through a deposition, today’s technology allows even seasoned trial lawyers the ability to present witnesses through videotaped deposition testimony that can be even more effective than having the witness appear live.  I know because I just finished a 3-week trial where 75% of the witnesses we called in our case appeared by videotaped deposition. The defense also called approximately 75% of their witnesses by deposition, The result: after a half-day of deliberations the jury found the defendants negligent and awarded our clients $217.7 million.

Federal courts and most state courts have rules that govern the use of deposition testimony at trial.  The instances when parties may introduce deposition testimony are limited:

• When the deponent (i.e., the person whose deposition is being taken) is an opposing party in the lawsuit.
• When the witness, who may not be a party in the case, is unavailable for trial because, for example, the witness is outside the Court’s subpoena range to force the witness to testify live at trial.

Why can witness testimony be presented more effectively through a deposition than live?

There are several reasons:

• Most lawyers videotape depositions today, so the jury is able to see the witness’s demeanor and judge his or her credibility. Jurors today are also more comfortable with videotaped deposition testimony because television has become such a prevalent part of our society.
• Attorneys can use today’s technology to make the videos more interactive to keep the jury’s attention. Effectively, attorneys play the role of a Hollywood director.  Attorneys can now use picture-in-picture to call out and highlight portions of an exhibit while the witness is being questioned about that exhibit.  And because videotaped depositions are edited before they are played at trial, the exhibits and testimony are smoothly played without delays that normally occur with a live witness – such as waiting on the audio-visual technician to pull up the exhibit, enlarge the portion discussed, and highlight it for the jury.  You can also edit out the delays that occur while the witness is locating the language you want to discuss, which can also be distracting.
• Many courts require the deposition testimony to be played chronologically, and will instruct the jurors before the depositions are played that the testimony they see will include questions and answers designated by both sides. Thus, jurors may not realize that a question and answer asked by the plaintiff’s lawyer in the deposition was actually designated by the defendant.  Although not all courts require deposition testimony to be played chronologically, if a court requires it a plaintiff should use it to its full advantage if possible.  Also, some courts will allow a party to play videotaped deposition testimony of an adverse witness – such as an employee of the opposing party – even if the opposing party is going to call the witness to testify live at trial.  Thus, a plaintiff could destroy the witness’s credibility with the jury before the witness takes the stand.

Tilting the Scales in Your Favor

Because of these technological capabilities, attorneys on both sides need to think ahead before a witness’s deposition.  If you are taking the deposition, and you know the witness will not be within subpoena range of the Court at the time of trial, you should consider taking the deposition more as a trial deposition (i.e., a true cross-examination) rather than a discovery deposition.  On the other hand, if you are the attorney defending the deposition, you need to talk to your client beforehand and decide whether you are going to have that witness appear live at trial.  If not, then you need to conduct a direct examination of the witness in order to preserve the testimony that you want to play at trial.  Otherwise, you are left with the witness’s answers to the questions asked by opposing counsel.

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