Depositions and trials have changed drastically in recent years, as have the jurors who hear cases. The analog days of reading deposition testimony into the trial record have increasingly given way to video clips of witness testimony.
While videography was once a luxury, it’s now a necessity if you want to present the best case for your client. The importance of videography has only increased in the past year as depositions went remote during the pandemic. Professional legal videographers are not only integral to creating the best possible evidence, they’re essential for preserving your case record in a secure and admissible way.
Why Video Matters
A decade or two ago, if witnesses couldn’t appear in person at trial, it was commonplace for parties to submit their deposition testimony by reading from a stenographic transcript. Sometimes attorneys even hired actors to appear at trial to play the part of witnesses and read questions and answers directly from the transcript.
Those reenactments are no longer good enough. Today, video has become integrated into nearly every aspect of our lives. Your jurors are accustomed to video as the primary means of receiving information, and they’ll expect it at your trial. The preference for video evidence will only continue to grow stronger as jury pools get younger and younger.
What does this mean for your trial strategy? It means that some, if not all, of your jurors will want to see and hear your witnesses actually speaking their own testimony if they’re going to be persuaded. They want to be engaged, looking at witnesses’ facial expressions and body language and hearing the inflections of their voices.
Lawyers are rapidly understanding the value of video testimony, which means that your opposing counsel may already be lining up a videographer for the next deposition in your case. If you’re not using this powerful tool, you’ll be at a disadvantage. You might find yourself in a scenario where your opponent is presenting video for all unavailable witnesses while you’re still reading from a transcript – and there’s a good chance at least some of your jurors will automatically be more persuaded by your opponent’s arguments for that reason alone.
The weight given to video testimony makes it crucial to incorporate videography into your trial strategy. You may not need a video of every single witness in a case, but you’ll want to hire a professional videographer for your key witnesses at the very least. The more witnesses you record, the more options you have when it comes to presenting your best case to the jury at trial.
Considerations for Remote Proceedings
With the proliferation of web conferencing technologies in the past year, it might be tempting to take a DIY approach to recording your depositions. Doing that would be a mistake. In order for your deposition videos to be admissible as evidence, you need someone with the right hardware and software to officially preside over the proceeding – namely, a professional legal videographer. Recording using videoconferencing tools like Zoom on your own won’t result in the official record you need.
First and foremost, videographers have the proper tools for spotlighting and recording only the witness and not the other participants. This involves more than just capturing the voice and image of the person who is speaking, but making sure that the witness is properly framed, visible and audible at all times. It is critical that all testimony is captured with a neutral, disinterested party’s view without adding any creative, emotional flair so that the jury can later have an unbiased view of what was said and how it was said.
If there are issues with the video or audio, the videographer can pause the proceeding until the problem is fixed. The same is true if the witness is improperly lit, poorly framed, has distractions in the background or any number of other common issues that can interfere with properly capturing video testimony. Nothing within the video image should detract from the deposition testimony, and the videographer is there to make sure it doesn’t.
Another crucial aspect of video depositions that only a professional videographer can handle is controlling what’s officially on the record and off the record. You may be at your deposition for eight hours, but only five of those hours are actual testimony. A legal videographer’s recording will include only those five hours, regardless of how many breaks you take or how many times you need to pause for interruptions that are not an appropriate part of the official record. For example, if someone forgets to mute themselves in a virtual deposition, the videographer can request to go off the record and only restart when the problem is resolved.
Finally, when you hire a legal videographer, you know your recording is always in the custody of a neutral professional and never in the hands of an interested party. When you try to record a deposition yourself via Zoom or another platform, there is no way to guarantee that the recording won’t be altered by whoever recorded it before it can be distributed. The right professional videographer will treat security as paramount. Recordings by anyone other than a professional videographer run the risk of being inadmissible as evidence because of the potential for manipulation.
Enhanced Trial Presentations
Videographers often also offer a host of other services beyond pure videography that can be helpful in putting on your best possible case.
The production values of official recordings make them more compatible with trial presentation software. You can also get a recording that’s synchronized to your transcript and easy to work with when it comes to strategically creating clips to show at trial. Even if you need to create those clips on the fly in response to evidence your adversary offers, the tools provided by professional videographers allow you to search for text, highlight it and prepare designations in a matter of minutes. Many legal videographers also offer services that go far beyond simply creating a video record of testimony, which can be an incredible asset in preparing for trial.
There’s no question that we live in a world where visuals are important, and your depositions need to keep up with the times. Your competitors will increasingly be adding video depositions to their trial arsenal, and that means your jurors will be expecting it from you, too. When it comes to winning over a jury and winning your case, legal videography gives you a huge competitive advantage.
About the Author
Dave DaSilva is the vice president of video and technical services at Veritext. He began his career in legal video in 1991 and was one of the first deposition videographers in the New York/New Jersey area. DaSilva joined Veritext in 2007 and has been the architect of many technology products including Mobile Depo, Veritext Virtual, Exhibit Capture, Multimedia Picture in Picture Depos and Exhibit Share. Follow him on LinkedIn and @Veritext.