“Preparing for the Video Deposition”

Yesterday I mentioned that James Publishing Company’s website includes excerpts of certain of its books.  I thought that the excerpt I referred to yesterday was so valuable that it was worth another post, so here is an excerpt from Section 439 of  "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain.

§439   Preparing for the Video Deposition

If your witness’ deposition is to be videotaped, additional preparation is generally in order. Unlike the standard stenographic record, a videotaped deposition captures the witness’s appearance, demeanor and testimony. Consequently, you may want to experiment with makeup, hair and clothing, in preparation for the deposition. You may also want to conduct a mock video deposition of your witness to not only familiarize your witness with the nature of the proceeding, but to graphically demonstrate what areas need correcting before the actual deposition. Often the witness’s review of his or her own performance is a much better aid in that witness’s preparation than all of your carefully drafted verbal admonitions.

Specific points should be reviewed with the witness about his demeanor and answering, analogous to testimony in the courtroom. With a deposition that is being only stenographically recorded, the visual aspects of the testimony, as contrasted to testimony at trial, need not be considered. However, with a videotape, the visual aspects of testifying become important. Consider the following checklist:

1. Sit comfortably, but reasonably straight, both feet on the floor, hands on the table in front of you.

2. Sit still. Everyone has their version of the meaning of a witness squirming, which might simply be occasional movement.

3. Sit straight. Often, the more tired you become, the poorer your physical posture becomes and poor physical posture usually creates a poor impression. Having your feet flat on the floor helps to maintain good posture. (Make sure that you have a comfortable chair that is not unduly relaxing.)

4. Look at the examiner when he or she is asking a question. However, if the camera is considered to be the jury, testimony directed to the jury is preferable. Juries are generally more receptive to answers given to them as opposed to a mere dialogue between the questioner and the witness. Depending upon the location of the camera, it may be advisable that the witness look at the camera when responding to the question. Remind the witness that you will insure that the camera angles will not unreasonably distort his or her physical ­appearance.

5. Speak in your normal voice, but try to invoke reasonable gestures, inflections.

6. Reading documents. Of course, you must take the time to read any document that is handed to you if you are going to be asked questions about it. However, try not to be unreasonably bent over the document. Instead, hold the document somewhat up. When you are not reading the document, switch your eyes back to the examiner. If the document has any length, ask if you can go off the record and read the document without the camera and lights on. Even if the request is denied, it may be of effect.

7. Remind the witness to follow the same rules for a stenographically recorded deposition. However, long pauses between the ­question and answer, although generally not discernible in a stenographically recorded deposition, can, in a video deposition, give the appearance that the deponent is somewhat less than forthright in his or her testimony. While the witness should carefully consider each question before answering, the witness nonetheless should be cognizant that long delays can be misinterpreted by the trier of fact.