LET S GO TO THE VIDEOTAPE! Using Video Depositions at Trial By Andria Simone Kelly, Esq. The Power of Visual Presentations A videotaped deposition that is thoroughly, properly and effectively conducted can prove to be a very persuasive tool at trial. Not only does it serve to preserve live testimony in the event a witness becomes unavailable, but it can also be extremely powerful when impeaching the testimony of the deponent as a witness. Almost every article on the use of videotaped depositions at trial quotes the old adage: A picture is worth a thousand words. Clearly, the actions and inactions of a witness during a deposition are not seen when the traditional deposition transcript is read at trial. Changes in tone or volume of voice, pauses or hesitations, eye rolls or sideways glances, shaking or nodding of the head, looks of horror, affront or disgust, and simple body movements or language cannot be discerned by listening to an attorney read the witness testimony from a deposition transcript. Thus, deposition testimony that is merely read aloud sounds hum-drum to the judge and the jury alike and does not serve the same punch as if it were presented via video. The reality is that jurors, especially young, tech savvy jurors, who are forever attached to their cell phones, tablets and other devices, expect that we lawyers are not only moving with the times, but one step ahead of them. Judge McCaffrey said it best as early as 1992 in his decision in Roche v. Udell, 588 N.Y.S.2d 76, 155 Misc.2d 329 (Sup. Ct., Nassau County):
It is time to accept the fact that, unlike Judges Chambers where the original Underwood typewriters have only begun to be replaced, even the average country lawyer s office is comparable to a mini-kennedy Space Center with all its state of the art computers, word processors, faxes, Lexis and, now, the latest in video equipment. Thus, suffice is to say video depositions are here to stay for, surer then death or taxes, lawyers like to play with new toys. Id. at 81. Despite Judge McCaffrey s forecast for the future of videotaped depositions, they are still not utilized as much as they should or could be during discovery or at trial. It is common knowledge and simple human nature that individuals will pay more attention to and retain better a video presentation then hearing the written word. We live in a visual age where visual content is a huge part of our everyday lives. Research shows that individuals learn and remember information that they see much better than information that that they hear. In fact, psychiatrist William Glasser has found that we learn and remember 10% of what we read, 20% of what we hear, 30% of what we see and 50% of what we see and hear. Given those percentages it is surprising that there is still reluctance among lawyers to use videotaped depositions over traditional stenographic depositions. Relevant New York Law New York law allows a party to conduct a videotaped deposition without court permission and without showing special circumstance. CPLR 3113(b); see also Roche at 80 citing 3A Weinstein-Korn-Miller, Section 3113.07 pp. 31-310. The Uniform Rules for the New York State Trial Courts, 202.15 provides for video recording of civil depositions and specifically states: The use of videotape recordings of depositions at trial shall be governed by the provisions of the Civil Practice Law and Rules and all other relevant statutes, court rules and decisional law relating to depositions and relating to the admissibility of evidence. 22 NYCRR 202.15.
CPLR 3117 outlines the rules for the use of depositions at trial. This section applies to stenographic as well as videotaped depositions. Basically, videotaped recordings of depositions, like traditional deposition transcripts, can be used at trial for the purpose of contradicting or impeaching the testimony of the deponent as a witness; for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered as evidence; and for any purpose provided the court finds (i) that the witness is dead; or (ii) that the witness is a greater distance than one hundred miles from the place of trial or is out of the state (with some exceptions); or (iii) the witness is unable to attend because of age, sickness, infirmity, or imprisonment; or (iv) that 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 circumstances exist that makes its use desirable in lieu of live testimony. Further, the deposition of a person authorized to practice medicine may be used by any party without showing unavailability or special circumstance. CPLR 3117(a). The videotaped deposition, like the traditional deposition transcript, can be used in the opening statement, during both direct and cross examination and in the closing statement. Best Practices 1) Know the rules! As indicated above, NYCRR 202.15 is the bible when it comes to the taking, conducting and using of videotaped depositions. Rule 202.15 discusses objections during and after the videotaped deposition. Objections should be addressed promptly with the trial court. How a trial judge handles objections made during
a videotaped deposition or thereafter is in the Court s discretion. Parties should reach an agreement on the videotape deposition testimony they wish to introduce at trial and any objections should be ruled upon by the judge before the trial commences. The bottom line: Follow the applicable rules or risk being precluded from using the videotaped deposition at trial. Judge McCaffrey weighed in on this issue as well in the Roche case, supra, stating: The rules are clear that no deposition may be put to any use except so far as admissible under the rules of evidence. Thus, the Trial Court has broad discretion to prevent the utilization of video deposition as an improper tactic at trial before a jury. Roche at 79. 2) Preparation is key! A good attorney will determine well in advance whether to use a videotaped deposition at trial, which clips to use and how and when to present them. The attorney must be judicious when deciding which video clips to use. He should only present those clips that will provide the most bang for the buck. Thus, it might be wise to leave out a video clip that might only garner a mild reaction from the jury. Overuse is not recommended and may be viewed as theatrical rather then real. The attorney must also consider how he presents the video clip, i.e., the size of the screen, the length of the clip, the use of subtitles, etc. The size of the video screen can influence how a jury views the video. Bigger is not always better. Video clips that are too long may lessen the impact as the jury may lose interest. Including the witness words on the screen could potentially confuse or distract the jury.
Lastly, the attorney must consider when to use the video clip. CPLR 3117(b) allows an attorney to use any part of the deposition at trial, however, their adversary may show any other part of the deposition at trial. Thus, a jury may view a video clip on the defense attorney s cross examination of a plaintiff, and the plaintiff s attorney may then present a different video clip on re-direct. Which video clip will the jury remember? The first or the last? Generally, the last thing heard is the first thing remembered. The defense attorney in this instance should find a way to beat his adversary to the punch so that the last video clip the jury sees and remembers is the one he presents. 3) Avoid equipment malfunction! Make sure your video equipment is operating properly. Prepare the video clips you intend to use in advance. Have a separate individual operate the equipment and bring up the clips on cue. 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. Conclusion Using videotaped depositions at trial can prove to be extremely beneficial so long as the rules of evidence are followed. In the end, proper and judicious use of a videotaped deposition at trial can bolster any case and lead to a winning verdict.