It is a foregone conclusion that professional law firms try to acquire and command the most up-to-date resources to strengthen their case, put some power in their corner, or pack some extra ammunition in their can, so to speak. In this arms race, video has emerged as a strong, reliable front line option, as it balances testimonial effectiveness with convenience and time management. The deployment of video depositions is becoming increasingly recommended, and its benefits are being seen by both those firms who have used it and won as well as those who have come up against it…and lost. A picture is worth a thousand words, as the old adage says, but a moving picture speaks for itself.
Let’s take a look at three tactical advantages of a video deposition:
1. Capturing the Human Element
Any judge, juror, or attorney can read the words off of a page from a piece of testimony. Some will read it with the proper intent behind the witness’s words, some will not, and others may read it flatly, without any bias towards any intention whatsoever, only taking the words at face value. The sole issue in this situation is that huge margin of error that is present when the witness is not there to read out his or her own testimony. In light of this, there is also often an admissible audio recording, but that only lowers that margin by so much.
There is still error because the testimony’s audience is not presented with a face. They may read the melancholy words or hear the sadness of the voice, but if you really want them to fully connect, understand, and relate to that person giving that testimony, it is tantamount that you show them the tears.
The human element is most potent when the situation is given a face. Interesting fact: if a Hollywood director doesn’t want you to feel sorry for the villain and their minions or remember that they’re actually people, one tactic they use, without fail, is to give them masks.
2. Capturing the Unspoken Language
People say a lot peculiar things when they speak that don’t involve the words they use. An ear scratch here, an unnecessary flurry of blinks there, the continual act of fidgeting when certain subjects arise. Such things form a pattern that can be read like code, yet in the moment that pattern might not be so apparent. With video, you have a rewind button, a pause button, and a play button. You can literally sit there on your own time and mark every moment where the deponent’s body language betrays them. Maybe you can’t, or choose not to, outright point out the incessant blinking and sweating, but what you can do is use this recorded information as a guide for your next line of questioning. Where do you see that the deponent was nervous or under pressure, and is that a sign of more information to be found?
3. Capturing The Displays and Visual Context of Poor Conduct
The idealists and the inexperienced in the world of law would like to believe that everyone is simply searching for the truth according to the procedures laid down in our legal codices. Unfortunately, this is untrue. Court cases are adversarial by their very nature, and, as such, they can bring out the worst in people. Name-calling, threats, pointed fingers, rude gestures, wry smiles, aggressive movements, and actual physical contact can happen in a deposition when the blood is up and there is no bailiff to keep order. Audio of an eye witness can only count for so much when accusations fly before the judge concerning misconduct.
Have. These. Moments. On. Video.
Even if you’re not worried about misconduct, video can be used as a manner of proper enforcement of good housekeeping. Did the deponent review all of the documents placed before them? When they pointed at something on a picture, where exactly did they place their finger? Remember: there is a camera present that can capture those minute, in the moment details.
A camera can and will capture every visual detail.
The camera never lies, and people will be hard-pressed to manipulate the truth presented in the footage as anything other than what’s presented. What you take with you back to your office is the most accurate record of that moment in time to bring before the court short of doing it live, and you can replay it over and over again to your heart’s content. When you enter a case, you can expect a fight on some scale, because not everybody plays nice, and the best thing you can do is make sure you’re at the front of that arms race.
ABOUT THE AUTHOR:
Adam Brooks is a legal videographer and client support team member at Realtime Advantage, based in New York City, and Brooks Court Reporting, based in Mississippi.
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