CONTROLLING STATUTES CPLR Section 3113(b) allows for the taking of depositions via video.

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1 STATE BAR ASSOCIATION October 27, 2016 Melville, New York BENEFITS AND DETRIMENTS OF VIDEO DEPOSITIONS Andria Simone Kelly, Esq. Ahmuty Demers & McManus 200 I.U. Willets Road Albertson, New York CONTROLLING STATUTES CPLR Section 3113(b) allows for the taking of depositions via video. 1

2 CONTROLLING STATUTES CONT D CPLR 3113(b) states: The testimony shall be recorded by stenographic or other means... CPLR 3113(d) states: The parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically. CONTROLLING STATUTES CONT D Uniform Rules for the New York State Trial Courts, Section discusses videotaped recording of civil depositions. It sets forth the rules for noticing the videotaped deposition and conducting the videotaped deposition. It also addresses filing the videotaped deposition with the Court and rulings on objections. 22 NYCRR

3 VIDEOTAPED DEPOSITION PERMITTED In Roche v. Udell, 588 N.Y.S.2d 76, 155 Misc.2d 329 (Nassau County 1992), the defendant physician moved for a protective order to prevent the plaintiff from conducting a videotaped discovery deposition arguing that he was available to testify personally at trial and that the presence of the video camera would affect his ability to testify accurately. The Court denied the motion stating that the plaintiff has a statutory right to conduct the videotaped deposition. CONTROLLING STATUTES CONT D CPLR 3117 states when and how deposition testimony, traditional or videotaped, can be used at trial: For impeachment purposes; For any purpose by any party who was or is adversely interested; For any purpose provided the Court finds that the witness is (i) dead; (ii) greater distance than 100 miles from the place of trial; (iii) unable to attend because of age, sickness, infirmity or imprisonment; (iv) the party offering the deposition has been unable to procure the attendance of the witness with diligent efforts; or (v) upon motion or notice that such exceptional circumstance exist that makes its use desirable in lieu of live testimony. The deposition of a person authorized to practice medicine may be used without a showing of unavailability or special circumstance. 3

4 PREPARING YOUR WITNESS FOR A VIDEOTAPED DEPOSITION PREPARING YOUR WITNESS: APPEARANCE A Picture is worth a thousand words. First impressions pretend you are on a job interview. Dress appropriately. Smile. 4

5 WHAT NOT TO WEAR WHAT NOT TO WEAR Shirts with sayings on them - especially curse words. 5

6 WHAT NOT TO WEAR Cover up. Whether it be tattoos/body art or cleavage keep it covered! APPROPRIATE ATTIRE If your witness wears a uniform for his job have him wear his uniform to the deposition. 6

7 APPROPRIATE ATTIRE Business attire/business casual may be appropriate depending on the witness being produced. PREPARING YOUR WITNESS: ATTITUDE AND COMPOSURE 7

8 ATTITUDE AND COMPOSURE Actions and inactions of a witness can be seen: Changes in tone or volume of voice Pauses or hesitations Eye rolls or sideway glances Shaking or nodding of the head Looks of horror, affront or disgust Body movements or language ATTITUDE AND COMPOSURE Both the witness and the attorney should avoid being argumentative. Both should maintain their composure throughout the deposition. While the only person seen on the video is the witness, the attorneys can be heard. An attorney who is less then civil and who incites the witness will be perceived as a bully and will not be well received by a jury. 8

9 HOW NOT TO ACT I DON T RECALL 9

10 USE OF EXHIBITS A videotaped deposition is a visual experience. So, make sure that all exhibits are put in front of the camera and identified accurately before showing them to the witness. Once shown to the witness, make sure they are authenticated. Have the witness confirm that the exhibit is a true and accurate copy of the document; that it is kept in the regular course of business. For photographs, make sure the camera captures the entire photograph and that the witness is questioned as to whether it fairly and accurately depicts the location of the accident. This will be useful at the time of trial when you are introducing those exhibits as evidence. USING VIDEOTAPED DEPOSITIONS AT TRIAL BEST PRACTICES Know the rules! NYCRR Section is the bible when it comes to taking, conducting and using videotaped depositions. Address objections promptly. Follow the rules or risk being precluded from offering the videotaped deposition at trial. Preparation is key! Determine well in advance of trial whether to use a videotaped deposition at trial, which clips to use and how to present them. 10

11 BEST PRACTICES CONT D Avoid equipment malfunction! There is nothing worse than reaching that point in your questioning where you have locked the witness into an answer that you know is contradicted on the videotaped deposition, and then not being able to upload the video. By the time the problem is fixed, the wow moment is lost and you have lost the jury as well. MORE BEST PRACTICES CONT D Before using a video clip for the first time during questioning ask the judge to instruct the jury that the video deposition is the same as live testimony and that the attorneys are required to edit the video for use at trial. 11

12 MORE BEST PRACTICES CONT D Before using a video clip for the first time during questioning make sure you show the jury the witness taking the oath at the deposition and acknowledging to the attorney s instructions. VIDEOTAPED DEPOSITIONS ARE HERE TO STAY We live in a visual age where visual content is a huge part of our lives. As individuals become more tech savvy, they will expect that lawyers are not only moving with the times, but one step ahead of them. As such, videotaped depositions are the wave of the future. Proper and judicious use of such depositions can bolster any case and lead to a winning verdict. 12

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