Video Deposition: A Guide for Litigators

If a court trial or successful settlement is the Superbowl, then depositions are the key games in the season that get you there. Each deposition is an official, sworn record of witness testimony that can yield critical evidence that can build a trial strategy or help determine the outcome of a settlement negotiation. 

Deposition transcripts provide an official record of every word. Still, this text doesn’t include attitude, intonation, facial expressions, or other clues that help inform the intent and meaning of the spoken word. 

Video depositions, on the other hand, can help capture nonverbal communication, and act as a stand-in for a witness who cannot be present in court.   

What Is a Video Deposition?

Depositions are official legal proceedings key to the discovery phase of preparing for a trial. At these meetings: 

• Witnesses are questioned and cross-examined
• Questioning is more in-depth and with a much broader scope than allowed in court
• Witnesses are under oath

A video deposition is a deposition that yields a video recording of the proceeding in addition to a transcript. The video may be limited to a camera focused solely on the witness to capture their deposition testimony audio-visually, though the participants present at an in-person or remote deposition typically include:

• The witness, or deponent, who is providing testimony
• The deposing attorney
• The deponent’s lawyer
• A court reporter 

Who Is Responsible for Arranging a Video Deposition?

In most cases, the recording is arranged by the deposing attorney. Ideally, a video deposition is recorded by a legal videographer. A court reporter will always be present with the videographer as well, to gather an accurate transcription of the proceeding.

Under Rule 30, Depositions by Oral Examination, of the Federal Rules of Civil Procedure: (1)

• The deposing attorney (or “noticing party”) bears the cost of creating an official record
• The recording method or methods must be included in the notice 
• Any deposition attendants can also arrange to record the proceeding (at their expense)

Note that although a deposition may be only video or audio recorded, that’s typically limited to rare and difficult situations. In most depositions, video and audio are captured supplemental to the transcript produced by the court reporter. If the deposition is used at trial, the court generally requires a certified transcript be provided in addition to any non-transcript format such as video. (2)

Some states employ additional regulations and restrictions. For instance, California requires a three-day advance written notice to all deposition invitees from any attendee who plans to create a video or audio recording. (3)

Do You Need a Professional Videographer?

Ideally, a video deposition is recorded by a legal videographer (or certified legal video specialist) who also has the credentials to administer an oath, attest to the video contents, and enter the video as part of the official record similar to a stenographic transcript. Having a legal videographer present also allows them to pan or zoom in on the witness, or pin the witness’s video in the frame. 

The video cannot be distorted or manipulated, and includes these elements:

1. Court reporter’s opening statement (1)
2. Deponent’s swearing in
3. Clarification of video deposition rules for the deposed witness
4. Oral examination, or questioning, of the witness by the deposing attorney
5. Cross-examination by other opposing attorneys
6. Court reporter’s closing statement

The opening by the court reporter for a video recording must include: 

• The court reporter’s name and business address
• Location of the deposition
• The date and start time
• The deponent’s name
• The administration of the oath or affirmation to the deponent 
• The identification and role of each person present

The closing statement on video from the court reporter should cover: 

• Statement that the deposition has ended
• Ending date and time
• Video recording and transcript custody and availability plans and stipulations
• Other attorney stipulations related to evidentiary exhibits, etc.

What Are the Benefits of Recording a Deposition?

Video depositions can benefit either the legal side of a case, or sometimes both, by providing insight, details, and intensity to testimony. Hearing an attorney read back a deposition transcript is a far cry from having the video available to experience the emotion of testimony firsthand. 

Impeachment

Depositions can be used to impeach key witnesses who contradict their original testimony, and a video clip can be used in addition to providing a transcript of the deposition. (2) Actually seeing a witness caught in a lie (or found to have an unreliable memory) carries more weight than the text-only transcript.

Stand-In for Missing Witness

If your witness is unavailable due to any of the following reasons, you’ll be sending your deposition videographer a thank-you card and playing deposition video clips in court: 

• Distance (100+ miles from the court location or outside the country) (2)
• Illness, infirmity, or age
• Death
• Imprisonment
• Willful absence after being served a subpoena

Lower Legal Costs

Flying in a key witness can be cost-prohibitive, especially if there are multiple appearances or days, or if the expert has a booked-up schedule. Depending on state law and judicial ruling, utilizing a video deposition at trial (especially one taken remotely) can put the use of critical testimony in reach for more cases.

Previewing a Witness’s Performance

An expert witness needs to display calm and confidence while communicating clearly, and an eyewitness needs to convey consistent recollections with the appearance of reliability. Previewing how well a witness holds up under examination by opposing counsel can help you: 

• Learn more about the witness’s self-control, memory, and response under pressure
• Decide whether or how to use the witness at trial
• Plan for what type of additional witness preparation is needed

Conversely, this preview can help the attorney deposing the opposition’s witness identify potential weaknesses to exploit—such as scripting questions that lead to lengthy, technical, boring answers from a witness who speaks in a monotone with little facial animation. 

Mock Trials and Consultations

Video depositions can be used in place of live testimony at mock trials to test possible jury reactions. Similarly, your legal team, other expert witnesses, and legal consultants will be able  to analyze how your witness does under the spotlight and provide feedback and suggestions.

Pressure to Perform Yields More Direct Q&A

The presence of a videographer and the knowledge that a judge or jury may see clips usually impact how people perform. It can often result in: 

• Shorter depositions
• Fewer “I don’t know” or “I don’t recall” replies
• More direct questioning by attorneys

Emotional Impact

“Sheila paused before sarcastically drawling “Oh, I’m sure that’s true,” with narrowed eyes and a disdainful smirk.” 

While this might sound like part of a cheesy genre novel, it’s not a sentence you’ll ever find in a court reporter’s transcript. There are no descriptions of expression or intonation, no dramatic interpretation of pauses or gestures.

Seeing a video clip can impact a courtroom much more strongly than a read-back of a deposition transcript. Viewers can: 

• See visible evidence of physical injuries
• View the emotional weight of testimony
• Utilize non-verbal cues to decide on truthfulness

The emotional impact on a jury is a factor whether it’s live or simply anticipated. Seeing a video testimony and understanding how it may play in a courtroom can drastically affect settlement negotiations and even cause an about-face away from judgment at trial. 

For example, after malpractice attorney John H. Fisher’s client was awarded $4.1 million in a birth asphyxia case, jury members told him that seeing a nurse cringe and delay responding to one fairly innocuous question on video was why they sided with the plaintiff.³

What Do You Wear to a Video Deposition?

While self-presentation is important at any deposition, it’s especially critical for depositions that’ll yield a video recording, since a judge or jury may view it. Instruct your team to follow the same guidelines they would for a courtroom appearance. 

For clothing, this includes: 

• Professional attire in conservative silhouettes
• Neutral colors such as navy, khaki or tan, and gray
• Dress shoes with low to moderate heels

Avoid outfits that incorporate: 

• Dramatic, large, or loud patterns
• Monotone schemes with funereal, bridal, or other connotations
• Logos, images, or text

Grooming should include: 

• Hair styled
• Day-time cosmetics with a light touch
• A clean face or well-groomed facial hair

And finally—accessories. Don’t carry or wear: 

• Loud, dangling, large, or flashy jewelry
• Hats, large scarves, or anything that covers the face and upper neck
• Playful, gothic, or other statement pieces

U.S. Legal Support: Your Guide to Video Depositions 

With so many benefits to video recording depositions, it can serve your cases and clients to make them the rule in your practice. Any party invited to a deposition can arrange for video recording, and the results can be used to impeach witnesses, inform strategy, negotiate settlements, and help win cases. 

U.S. Legal Support connects you to a network of 5,000+ court reporters, with the technical legal support services and tools to conduct remote, in-person, and video-recorded legal proceedings. Contact us today to discuss how we can help with your litigation planning and upcoming depositions.

Sources: 

1. Cornell Law School. Rule 30. Depositions by Oral Examination. https://www.law.cornell.edu/rules/frcp/rule_30
2. Cornell Law School. Rule 32. Using Depositions in Court Proceedings. https://www.law.cornell.edu/rules/frcp/rule_32
3. John H. Fisher, P.C. Why Do I Videotape All Depositions? https://protectingpatientrights.com/faqs/why-do-i-videotape-all-depositions/
4. FindLaw. California Code, Code of Civil Procedure – CCP § 2025.330. https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-2025-330/