| by Brian L. Burchett of The Burchett Law Firm, P.C.
A picture is worth a thousand words. Why tell the jury what the opposing party said when you can show her say it, with subtitles? Deposition video clips are the same as the written transcript.
When it’s the deposition of a party, the testimony can be used for any purpose. You can play helpful soundbites in your opening statement. You can pop clips up on the screen during your evidence presentation. For instance, imagine the family doctor wrote in his office note that after a collision, the plaintiff’s shoulder hurt, but everything else was normal. And, that’s what he says in trial. During the doctor’s testimony, you could play the plaintiff’s deposition testimony where she gave a long list of physical complaints that went well beyond her shoulder, and ask the doctor, “Did she complain about those things when you saw her just after the accident?” His “No” response to her list will have much more impact than a “No” to your “Anything else besides her shoulder?”
For non-parties, including experts, video clips can be used for impeachment just like transcripts, but with preparation it can have much more impact. The deposition impeachment process culminating in your reading transcript excerpts to the jury seldom produces that Perry Mason moment we all want. But the jury actually watching the witness say something very different from what he just looked them in the eyes and told them makes the deposition impeachment process (“What line was that again, counsel? Sorry,”) so much more worthwhile and effective. You can just see the jurors turn with accusatory disdain from the screen to the embarrassed, lying witness.
This takes preparation. Most of us note the corresponding deposition citations in our cross-exam outlines so we can grab the transcript to slap the witness with the inconsistent testimony if the answer in trial is different. To have a video deposition ready to do the same thing, you will need the video clips of those citations excerpted and ready to play. They can be bar coded, and with a blip from an inexpensive bar code reader you can pull up the video clip faster than you could find the page and line in the paper transcript. Network Deposition Services can help with this.
Don’t forget that you can use the video depositions of physicians and experts in lieu of live testimony. You are not required to play the whole thing. You can use the clips you want. The other side is entitled to add clips, too, of course. Most judges require objections be dealt with in advance of presenting the video deposition excerpts. After what is to be played has been determined, Network Deposition and Litigation Services can prepare the video transcript excerpts for fairly seamless presentation. Be sure ahead of time that you have good, clear audio and a decent image to show. Have the written transcript appear on the screen as a sub-title because the sound inevitably will not be quite as clear as live testimony.
Advantages:
- It is cheaper and easier than getting an expert or physician to the courthouse to testify.
- The deposition clip never gets called-in to perform emergency surgery or is delayed when patients run long.
- You present the testimony when it suits you and your client, not the witness.
Disadvantages:
- Live testimony is more compelling to watch. There is no way around that.
- Dealing with exhibits can be more cumbersome.
- Also, you will not be able to have the witness address anything that may have changed during the trial.