By: Michael Maggiano and Daniel LaTerra Click here to download.
A picture is worth a thousand words. Yet the majority of depositions are just black words on white paper. However one may question videotaping a deposition. Many of my colleagues ask why potentially risk exposing your client to visual scrutiny that would be unseen by a written transcript? What purpose does videotape serve especially when a party will be available at the time of trial to present live testimony? My colleagues also argue that not only is the witness picked up by the video, but so is the conduct of the questioning examiner, his or her voice, tone, manner and forcefulness used to catch the witness off guard on video for the world to hear.
The purpose of this paper is to open for discussion and experimentation the appropriate use of a videotaped deposition for settlement and trial.
There are a number of good trial lawyers from around the country who believe that you take all depositions as videotape depositions unless there is a strategic or logical reason not to do so (for example, an administrative witness, a medical records custodian, a witness who is favorable to you and whom you believe will make a “poor witness” on video.)
Some argue that you should take the videotape depositions of both favorable and unfavorable fact and other liability witnesses, as well as your damages witnesses. In addition, it is recommended that you always consider filing a “cross-notice of taking videotape deposition” with respect to witnesses whose depositions are set by the opposition.
Accurate Preservation of Testimony: The videotape deposition truly and accurately preserves the testimony of the witness. I have always felt that the majority of the communication process is more the “how” than the “what” of that being said. The majority of the natural communication process of two face to face people is non-verbal. The expanding neuropsychological study of human communication called neurolinguistic programming tells us that there is much to be learned by the intentional and unintentional word use coupled with vocal, tonal quality, eye, facial and body movements of individuals as they respond to questioning .
Unfortunately, much of the deposition experience of a witness in a non-videotape deposition is often not “preserved” at all. The regular deposition does not indicate much of anything with respect to mannerism, tone of voice, attitude, demeanor, poise of the witness, hesitation when responding, and much, much more. You might say that much like a boxer and his trainer learn from the videotapes of prior battles of an opponent, we can learn much from the videotaped testimony of a witness in the instant and prior matters.
Of course the flip side is that once you have videotaped, the opposition, if they are smart they will be studying you and the witness as well. Fortunately for the aggressive lawyer, little time is spent by most opponents reviewing past discovery which usually winds up in a binder or red well until the time of trial as most lawyers spend their day and sadly their careers, like firemen, responding, rather taking the extra time to pause and reflect on the development of their case.
Accurate Prediction of Trial Testimony: The videotape deposition gives the trial advocate a very accurate prediction as to how the witness will testify and act at trial.
What you see and hear on a videotape deposition is what you will most likely see and hear at trial. On the other hand, the non-videotape deposition is not an accurate predictor at all. In fact, what we often see in a witness at a non-videotape deposition is totally the opposite of what we actually see and hear from that witness at trial. The difference is like day and night.
Vague and Obscure Answers Generally Eliminated: Videotape depositions ordinarily eliminate most of the “I don’t know” and the “I don’t remember”. The reason is simple: The witness believes that he or she, is looking into the camera, is actually speaking to a judge or jury, and the witness is more inclined to give straightforward answers in a videotape deposition as opposed to fudging and hedging and doing the old “soft shoe” or the “proverbial tap dance.” When this happens in the regular deposition, the witness more often than not gives you little or nothing that can be of assistance yet becomes a well-prepared and problematic witness for you at trial.
As to those expert witnesses who just will not answer your question or the lay witness who persists in professing total amnesia, the video captures their behavior perfectly. Any attempt by the witness at changing their story at trial becomes most difficult as they are confronted by their video testimony, now played before judge and jury.
Obviously, there are some witnesses whom you would just as soon have demonstrated things that they “don’t know” and “don’t remember.” This, of course, is one reason why there are certain exceptions to the taking of videotape depositions. However, we have generally found it is better to find out what the real trial testimony is likely to be with an accurate prediction via the videotape deposition.
Shenanigans Eliminated: The videotape deposition eliminates virtually all of the shenanigans and games played by some attorneys in depositions. The hand and arm signals decrease. The witness does not look to the lawyer for answers as in the regular deposition. Lawyers behave themselves in videotape depositions – and if they don’t – they’re on camera with their misbehaviors.
Judge and Juror Appreciation: Judges and jurors tend to believe that the reading of a lengthy deposition at trial is ridiculous and stupid and boring. They know that in the 21st Century there simply must be a better way. And there is. This “better way” comes in the form of the videotaped deposition. Judges and jurors appreciate watching a deposition on video much more than having it read to them in whole or in part. Obviously, it is up to counsel to make the videotape deposition interesting and to the point. Remember, the long and drawn-out videotape deposition can prove to be almost as bad as the reading of a regular deposition by transcript.
Impeachment Intensity Increased: All courts have the discretion or authority to allow counsel the right to impeach prior deposition testimony by actually playing certain excerpts from the videotape deposition. Most judges will allow this in civil and criminal cases. It is far more effective and it significantly increases the intensity regarding the impeachment.
Witnesses’ Activities Captured: In many depositions, witnesses are asked to point to certain areas on their bodies. Sometimes they are asked to give demonstrations. In other instances, witnesses in deposition are asked to draw sketches of scenes. The list goes on and on. All of these activities are preserved completely in the videotape deposition. Unfortunately, they are only “described” by lawyers in the regular deposition by the classic phrase, “Let the record reflect that the witness has…..” and many times there is nothing in the record about these activities at all.
Demonstrative Evidence Utilization: Demonstrative evidence is very effectively utilized in the video tape deposition. This includes having witnesses describe or “demonstrate” with photographs, drawings, diagrams, maps, charts, medical illustrations, video and computer animations and reconstructions, anatomical drawings, models, and more.
Point Made: Lawyers and witnesses tend to “get to the point” in videotape depositions far more effectively and efficiently than in regular depositions. There is less time wasted and very little use of “filler questions” in videotape depositions.
Lawyer Preparation Enhanced: Lawyers get better prepared for the videotape depositions than for regular depositions. This is simply a fact. This better preparation increases the likelihood of the sides either settling the case earlier or learning at an earlier point that the case will have to be tried – which we believe is advantageous to your case.
Opposition Attention-Getter: Your opposition knows you are serious about the litigation and trial of your case when you start taking depositions by videotape. The opposition knows that you are putting in an all-out effort in terms of time and money in order to move forward with the preparation of your case. Setting depositions by videotape is a significant attention-getter for the opposition, whether in a civil or criminal case.
All of the following factors should be considered in your decision-making process regarding the setting of a deposition as a videotape deposition or a regular deposition. Obviously, some of the above considerations may well persuade you that a videotape deposition would be an incorrect strategy. Our recommendation is that you simply never fail to consider taking a given deposition as a videotape deposition (and this holds true with the filing of a “cross-notice” of a deposition taken by another party, as you may well want it videotaped).
II. New Jersey Court Rule 4:14-9
Rule 4:14-9 permits a party to videotape a deposition for discovery purposes or for use at trial in accordance with applicable provisions of discovery; however subject to additional limitations.
Specifically, the time for taking a videotaped deposition remains consistent with Rule 4:14-1, with the mandate that the videotaped deposition of a treating physician or expert which shall be used at the time of trial shall not occur until thirty (30) days after a copy of the physician/expert report is provided to all parties.
A party seeking a videotaped deposition must serve the notice, as required by Rule 4:14-2, at least ten (10) days prior to the date the deposition is sought. Additionally, the notice must inform the party that the deposition will be videotaped.
The fact that the deposition is videotaped does not eliminate the stenographic recording requirement of Rule 4:14-5. In fact, the stenographer must transcribe the name, address and firm of the videotape operator on the record.
Like any other objection to a deposition, the opposing party is not free to simply refuse to attend. A protective order must be applied for pursuant to R. 4:10-3. Fero v. Cutler, 66 N.J. 443 (1975).
At the completion of the videotaped deposition, the video operator will deliver the videotape to the party taking the deposition. This party will retain custody and make one copy. The one copy shall be provided to one adverse party who is responsible for making additional copies of the videotape for other parties.
At trial, the videotape deposition may be used in accordance with Rule 4:16-1. Thus a videotaped deposition may be used to contradict or impeach the testimony of the deponent as a witness as well as for “any other purpose permitted by the rules of evidence.” Where the deposition testimony may be used as substantive evidence, the videotape may be so used.
Likewise the videotaped deposition of a party may be used at trial by the adverse party for any reason. For example in Hutchinson v. Atlantic City Medical Center, 314 N.J. Super. 468 (App. Div. 1998) a medical malpractice case, plaintiff was permitted to use the defendant’s pretrial deposition to establish the standard of care.
Imagine the power of that testimony when videotaped. The videotaped deposition of any witness who is unavailable for trial as defined by the rule may be used as substantive evidence at trial. Additionally, a de bene esse videotaped deposition of a physician/expert may be used in place of live testimony regardless whether the expert is unavailable.
Notably, all objections available to counsel at trial must be made at the time of the de bene esse videotaped deposition. A Motion must be filed requesting ruling on the objections within forty-five (45) days of its completion; however, the Court may adjust this time requirement for good cause shown (for example where a physician becomes unavailable on the eve of a trial and his testimony for trial videotaped.)
The Rule provides that the costs of the videotape deposition, including, but not limited to, filming, transcribing and copying shall be borne by the party taking the deposition. However, a party presenting the videotape at trial will bear the costs associated therein.
III. Federal Rule of Civil Procedure 30(b)(2)(3)
The Federal Rules of Civil Procedure explicitly provide that depositions may be conducted by videotaping. Specifically, Fed. R. Civ. P. 30(b)(2)(3) reads:
- Method Stated in the Notice: The party who notices the deposition must state in the notice the method for recording the testimony. Unless the Court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.
- Additional Method: With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the Court orders otherwise.
Thus, the current rule permits “sound and visual recordings of depositions and, thus, recognizes the routine nature of non-stenographic recording”. Fanelli v. Centenary College, 211 F.R.D. 268, 269-270 (D.N.J. 2002), citing, Gillen v. Nissan Motor Corp. 156 F.R.D. 120, 122 (E.D.Pa. 1994).
IV. The Right of the Non-Initiating Party to Videotape a Deposition
In the unreported decision of La Marche v. Hackensack University Medical Center, 2008 WL 4124473 (Decided July 22, 2008), the Honorable Rachelle L. Harz, J.S.C., held a non-initiating party may compel the videotaping of a deponent at deposition. The question before the court as framed by Plaintiff’s motion and Defendant’s reply was whether the party noticing the deposition has the sole right to videotape it or not.
In the La Marche case as in other cases I have had where I am called upon to represent the severely injured, I request that their deposition be videotaped. Mrs. La Marche suffered significant cognitive and physical impairments after falling into a coma due to an undiagnosed subdural hematoma.
There are many reasons for such a request:
- We actually hear the examiner asking the question
- We actually see and hear the witness
- No longer are we limited only to flat printed words on paper but we see the multi-dimensional experience of the actual deposition unfolding on video tape
- We wait and watch for the answer;
- We see the witness’s demeanor, her appearance, her eye contact, her ability to speak and move, her difficulties in speech, her difficulties in grasping the question, her difficulties in framing an answer, if she can frame an answer and I can go on and on.
- Should she or he say something totally incorrect or inappropriate which happens frequently with the brain injured we can actually see and hear the witness to get a better appreciation in determining if it is the brain injury speaking or the truth.
The defense argued that only the party requesting the deposition can chose whether it be videotaped or not.
Plaintiff’s counsel argued that the history of our evolving Rules of Court and particularly those dealing with expanding usage of technology such as Rule 4:9 are to be read expansively. The restriction asserted by the defense is not found in the rule nor can it be inferred. Such assertion by the defense is an unwise and unwarranted interpretation of an ever expanding court rule regarding videotaping. The point made was why place a limitation on an expanding rule when there is no such limitation presented.
The history of the rule and pre-rule case law demonstrates the joint evolution of the camera’s eye and its use in discovery and trial. Truly, the practice of law and the Rules of Court have changed greatly since I started 34 years ago before the advent of the office and home computer and the gigantic advancements in moving picture technology.
In 1980 the Supreme Court Civil Practice Rules Committee recommended the videotaping of testimony of witnesses who may not be able to attend trial and parties who are physically unable or may not live to make it to trial. The committee and then the Supreme Court recognizing the benefits of providing more information to the jurors by way of actually seeing and hearing the witness as if in real time gave so much more to jurors to evaluate the testimony. How was the question asked, manner and tone of the examiner? How was the question answered, the demeanor of the witness, eye contact, slow or rapid to answer, angrily answered, softly or slowly answered? Not only now was the written language of the deposition there in transcript, but also, voice and body language was there for the jury to see and evaluate.
As Judge and Practitioner became more comfortable with the technology and we saw how it helped, case by case, the system of justice in a very practical way, the rule was expanded by case law and eventual amendments.
As time went on and video cameras improved, and with the advent of the digital age and finer lenses and no longer a need for additional lighting for the camera, we all were becoming more and more comfortable with the technology and using it more frequently.
Then the Committee recommended and the Court approved videotaping of any witness upon due notice. Now the view is amongst lawyers that if the deposition is worth taking it should be worth videotaping.
The history of our evolving Rules of Court and particularly those dealing with expanding usage of technology such as Rule 4:9 are to be read expansively. The restriction asserted by the defense in La Marche is not found in the Rule nor can should it be inferred. Such assertion by the defense it was contended as an unwise and unwarranted interpretation of an ever expanding court rule regarding videotaping.
The history of the Rule only encourages its advancement and expansion in the civil discovery process.
The salutary holding was premised on rule interpretation and case law. There is no Court Rule recognizing or prohibiting the right of the non-initiating party to videotape a deposition. The right finds itself in the spirit of our liberal and flexible discovery rules with their primary goal as truth finder and previous judicial interpretations dealing with the issue. La Marche, supra, 2008 WL at 1. The case law relied upon for the holding in La Marche gives a historical predicate and promise for further advancements as the technology moves forward.
In Baker v. Deane, 192 N.J.Super. 153 (Law Div. 1983) the Court recognized the right of any party to photograph a deponent during deposition. There was no Rule authorizing this practice. Baker, supra, 192 N.J.Super. at 155. The Court relied on Rule 1:1-2, which reads in pertinent part:
shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay…In absence of rule, the court may proceed in any manner compatible with these purposes and, in civil cases, consistent with the case management/trial management guidelines… Rule 1:1-2 (my emphasis)
The Baker Court relied on case law that pre-dated Rule 4:14-9. Specifically, Blumberg v. Dornbusch, 139 N.J.Super 433 (App. Div. 1976) permitted the videotaping of a deponent despite any discovery rule. The Court reasoned:
Videotape is neither new nor can it be considered an experimental electronic novelty. Its use in conjunction with television is part of our contemporary scene. The use of videotape as an instructional aid in classrooms, to monitor scientific experiments, to control industrial operations, and as a security device in banks and other public places is well recognized and accepted by the public. Blumberg, supra, 139 N.J.Super. at 436.
Blumberg rejected the argument that videotaping a deposition without a Rule in place usurps the rule-making power of the Supreme Court. Blumberg, supra, 139 N.J.Super. at 437. “Rules of discovery are to be liberally construed”. Blumberg, supra, 139 N.J.Super. at 437, quoting, Huie v. Newcomb Hospital, 112 N.J.Super. 429 (App. Div. 1970). “The broadest possible latitude should be accorded them”. Blumberg, supra, 139 N.J.Super. at 437-438, quoting, Myers v. St. Francis Hospital, 91 N.J.Super. 377, 385 (App. Div. 1966).
See also; Mills v. Dortch, 142 N.J.Super. 410, 415-416 (Law Div. 1976): Our current court rules do not specifically provide for videotaping a pretrial deposition. However, nothing in our court rules prohibits videotaping a deposition. The Appellate Division expressed the opinion that videotape as a method of pretrial discovery or trial procedure should not be rejected unless some rule of court expressly precludes its use. (internal citations omitted)
The initiating party may argue that Rule 4:14-9 limits videotaping depositions to expert witnesses. However, this argument was rejected by LaMarche relying on Judge Pressler comments:
applies to the taking of both discovery and de bene esse depositions of both expert and lay witnesses. The self evident purpose of this rule in respect to expert witnesses and treating physicians is to avoid the necessity of producing these witnesses at trial since trial production of experts has become increasingly burdensome to litigants as the expense of expert testimony escalates. LaMarche, supra, 2008 WL at 12, quoting, Pressler, Current N.J. Court Rules, Comments to R.4:14-9 (Gann, 2008) (emphasis provided).
As Pressler’s statement indicates, the self evident purpose description applies only “in respect to expert witnesses and treating witnesses” and does not necessarily cover the depositions of lay witnesses or parties to the litigation. La Marche, supra, 2008 WL at 12.
The initiating party may argue that Rule 4:14-9 (d) and (g) evidence that the initiating party has control over the videotaping given the party is charged with custody and copying expenses of the videotape. However, the spirit of the Rule does not preclude the non-initiating party seeking to videotape the power to fulfill the custody role and assume copying expenses. Specifically, the incorporation of the phrase “in the first instance”, within subsection (g), underscores the flexibility of the Rule and undermines a narrow interpretation limiting control of videotaping to the initiating party. La Marche, supra, 2008 WL at 13.
V. The Benefits & Risks of Videotaping a Deposition
A. The Benefits
The Blumberg, supra, Mills, supra, and LaMarche, supra, identified the benefits associated with the taping of video depositions. Specifically, a videotape avoids the cold reading of a deposition transcript in court. This underscores the cliché “a picture is worth a thousand words”. By presenting a video transcript a jury will be enabled to judge credibility to the words by assessing appearance, tone and articulation of the spoken word by the deponent.
In Fanelli, supra, 211 F.R.D. at 271, the Federal Court recognizes the benefits of videotape:
The Court has also assessed the utility of videotaped depositions, even when to be used later at trial for the limited purpose of impeachment. The wave of the future clearly lies in the use of electronic technology both in discovery and courtroom presentation. In a few years, it will be commonplace to use videotape instead of a cold transcript for purposes of impeachment of critical witnesses.
…Incorporating a video deposition into such software to impeach the witness at trial will ordinarily be less time consuming and more effective than fumbling back and forth referring the witness to lines and pages in a transcript.
Most notably, the Federal Court believes that videotaped depositions may also lead to settlement sooner rather than later. “Critical assessment of the strengths and weaknesses of a witness’ expected trial testimony by viewing the deposition may provide invaluable insight into how a jury might view the particular testimony. Fanelli, supra, 211 F.R.D. at 271. See also; Hansel v. DeArmitt, 71 Pa. D.&C., 4th 199, 203 (2004) (Videotaping a deposition may prove to be of assistance in evaluating settlement possibilities).
This assessment coincides with the goals of a “just, speedy and inexpensive determination” of a case as required by Fed. R. Civ. P. 1.
B. The Risks
The benefits of a videotaped deposition may be overshadowed by the potential risks to the proponent if unprepared; for better or worse you have now captured your client, witness, expert or you on videotape. Similar to the goal of videotaping an individual for use at trial or to leverage a settlement, one must always be cautious that an individual’s performance on a videotape may cause more harm than good.
For example, how will a jury perceive a plaintiff smiling his way through video deposition and who now sits before her jury claiming a life ruined by a catastrophic incident? Witnesses must look credible at all times during questioning, responding, and during that tell tale in-between time that inevitably crops up even in the best planned depositions.
Preparing for the video deposition requires the development of a level of self-awareness far beyond the more lax environment of most deposition settings in which faults and shortcomings do not find their way into the transcribed deposition. With the advancements of technology, the shrinking camera and lack of need for spotlight on the witness frequently allows the witness to forget the camera is on her during a longer deposition. Yet the nature of the camera eye, witness behavior tends to be magnified.
How will a jury perceive counsel who aggressively deposes a party on videotape, yet stands before the jury panel depicting an alternate-image? How interesting can you make your de bene esse deposition? Are you stuck with the thirty minute talking head that will take even the most favorable jury to a near pulse-less state?
C. Preparation is Key
The following advice has come to me from periodic communications from DecisionQuest Trial Consultants:
- Be aware of non-verbal communication. Effective non-verbal communication includes leaning forward, listening attentively and using only minimal hand gestures. Do not allow the deponent to sit in a swivel chair or he/she will undoubtedly swivel in it! Eye contact should be directed toward the questioner, not the camera directly. (The camera can be placed such that it is shooting over the shoulder and slightly to the side of the deposing attorney, or it can be set for a side shot of both the deposing attorney and the deponent or just the deponent. The over-the-shoulder shot is preferable if the videotape will be used in court because it allows the jury to see the witnesses’ facial expressions.
- Conservative clothing is a must for a video deposition. A dark business suit with a light blue or white shirt is appropriate for a man, a suit or sedate dress for a woman. Jewelry, make-up, and hair should be simple and neat.
- Keep the background simple. A plain wall, a law library bookshelf, or a simple drape is a good backdrop. Anything too busy will be a distraction to the viewer. Under no circumstances should the background be windows with outside light entering the room. Lighting should be bright, soft, and even. Shadows behind or on the witness’s face are distracting.
- Be aware that time has greater significance in a video deposition. The customary instruction to the witness is to pause and take time before answering. On a videotape, the pauses seem longer; pauses suggest to jurors that the deponent does not know the answer to the question. As such, in a video deposition, witnesses should answer as quickly as they can after listening carefully to the question. Since juries are also bored by long delays, an effort should be made to have the camera turned off when the deponent is reading a long document. Witnesses should be instructed not to play with or linger over documents after they have reviewed them, but rather look up and listen for the attorney’s question.
- Plan ahead to avoid technical problems. For example, having individual microphones for the attorney and for the deponent works best for sound quality. A simple “lavaliere” microphone, clipped to each individual’s jacket, is the best way to do this. A single microphone in the middle of the table tends to pick up background noise and produce uneven sound. Hiring a professional videographer who will monitor the audio and video content of the proceedings is a must.
Overall, the video deposition presents distinct challenges for attorneys and witnesses. We find the best way to assure that a video deposition will be successful is to conduct the witness preparation on videotape, before the actual deposition takes place. The attorney and a communications specialist can provide feedback to the witness long before the session is scheduled. In this way, you can be assured that the witness’s performance will be one you and the camera won’t want to forget. Unfortunately a video deposition can become quite expensive and most difficult when involved in the expert de bene esse deposition. Those high priced witnesses who are too busy to come to court are often too busy to give you ample time in pre video deposition prep.
VI. Prevention of Videotaping
The option to videotape a deposition has its boundaries; provided that, there is good cause to prevent a party from videotaping. Rule 4:10-3(c), Protective Orders, reads:
On motion by a party or by the person from whom discovery is sought, the court, for good cause shown or by stipulation of the parties, may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including, but not limited to, one or more of the following:
(c)That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery.
“Implicit in R. 4:10-3 is the notion that the movant bears the burden of persuading the Court that good cause exists for issuing the protective order.” Kerr v. Able Sanitary and Env. Services, Inc., 295 N.J.Super. 147, 155 (App. Div. 1996), citing, D’Agostino v. Johnson & Johnson, 242 N.J.Super. 267, 281 (App. Div. 1993).
The Federal Court also recognizes a protective order; provided good cause is demonstrated by the movant. Fed. R. Civ. P. 26(c). This is a most difficult task, as most memorably, President Clinton discovered a number of years back.
Like all discovery and demonstrative tools you must first do a total case analysis applying critical thinking to the deposition in order to use this tool wisely.
- Why do I want this deposition and why on video?
- What is my plan.
- Why this witness.
- Have I fully scoped out the witness.
- Do I have all he or she has said in the past?
- What exhibits in terms of documents or visuals?
- What points should be made?
- What points can be made?
- Can I make them better with another witness?
- What video-graphic equipment do I therefore need?
- Should it be a two or three camera shoot or just a one camera shot straight on?
Every video deposition involves considerable critical thinking of this dynamic process you are about to embark upon. It is a powerful tool. The last thing you need is to miss the opportunity or have the deposition blow up in your face. When done right it adds a layer of believability to your case in the juror’s minds that is irreplaceable and can be used in so many ways in further discovery, settlement presentations and at trial. The bounds of your critical thinking, creativity and strategic planning framed with in the Court Rules and applicable Rules of Evidence establishes your platform for success.