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Six Benefits of Video Recording a Deposition

Three boys were traveling east on Overland Road on their way to school when a classmate in another vehicle pulled out in front of them. The vehicle swerved to avoid impact with the other vehicle but lost control and collided into a utility pole. The driver of the car going on Overland Road died at the scene and the two passengers inside his vehicle were seriously injured requiring them to be rushed to the hospital. It took months of treatment and physical therapy to help get them back to a pre-accident status for one, but the other boy incurred pain that was considered something he will have to endure for the rest of his life.

After the other driver graduated from high school, he joined the Army. Resolution of the case was attempted before filing suit, but the other driver’s insurance company refused to give a bona fide offer requiring us to file a lawsuit to pursue the boys’ legal rights and remedies. After the suit was filed, the Defendant’s attorney filed an answer denying responsibility for the accident even though the Defendant had been served with a traffic ticket for failure to yield the right-of-way. So, a deposition was calendered of the driver who had since joined the Army. During the deposition, the driver displayed a rather indignant attitude through the course of the audio-recorded deposition.

When I schedule a deposition, I must chose between having the deposition video recorded and/or having a court reporter present to transcribe the questions and answers into a booklet to assist me in preparing rebuttal testimony and evidence for trial and to use at trial for purposes of impeaching or otherwise discrediting the witness if the case goes to trial and the witness changes his testimony at trial in any way from the testimony rendered during the deposition.

I typically conduct an audio-visual deposition of the opposing party, because I think it is helpful to analyze not just what the defendant is saying but how the defendant comes across while rendering testimony during a deposition.

I traveled to Alabama to take the Defendant’s deposition in the case, and I noted that the Defendant was in uniform (probably at the suggestion of his attorney). After the defendant was sworn upon oath, I noted a defiant attitude displayed by the Defendant as I began the deposition. It is for this reason, I typically have a videographer present to video record an opposing party’s deposition.

The longer the deposition went on, the more indignant and uncooperative the Defendant became. During the second hour of the deposition the Defendant seemed to unravel at the seems and following a question regarding what he had been doing just moments prior to the accident, the Defendant barked, "I can’t believe that you are harassing a soldier during a time of war!" Keep in mind, the defendant was not in the military at the time he negligently caused the auto accident which resulted in the death of one classmate and serious injuries of two others. Rather than engage the defendant in response to his outburst, I simply asked the Defendant in response to his outburst, "Tell me soldier, it is your position that since you joined the Army after being involved in this horrific collision whether it your position that as a member of the Armed Forces during a time of war that you are above the law and not required to answer my questions posed to you about what you did that lead up to the death of a fellow classmate and the injury of two others?" Whereupon, the defendant simply bowed his head and said, "No." Whereupon, I said, "Then please answer my question," and I re-asked the question posed to him that immediately preceded his outburst. The video recording of the deposition showed a number of times where the defendants was defiant and uncooperative and one that would serve our purposes well in the event the case went to trial to overcome the bias that a juror might have in his favor simply because he was wearing the uniform of an Army soldier at trial.

SIX BENEFITS OF CONDUCTING A VIDEO RECORDED DEPOSITION

I have learned over the past 34 years of taking thousands of depositions that when it comes to deposing an adverse party it is best to video record the examination in addition to having a court reporter present taking down the testimony. It provides so much more information to a jury if the matter goes to trial, including:

1. Providing the jury with the demeanor of the Defendant during the deposition, i.e., whether the defendant was defiant, belligerent or evasive during the questioning;

2. To show the jury whether the Defendant was forthright in answering the questions posed immediately upon having the question asked or whether the defendant was looking at the Defendant’s lawyer for direction;

3.  To show the jury whether the defendant was taking an inordinate pause before answering a question posed during a deposition to figure out how to render an answer which demonstrates to the jury that the answer was contrived as opposed to being forthright;

4.  To show the jury whether the Defendant’s lawyer was attempting to coach the deponent by way of a hand signal or head movement in responding to a question posed by the inquiring attorney;

5. The video recorded deposition is more likely to keep the interest of the jury rather than someone simply reading from a written text. The invention of YouTube demonstrates the power of video recordings over written text; and,

6. Video recording the deposition can be of assistance to the trial lawyer in showing parts of it to a focus group and having the focus group evaluate the testimony rendered from a layman’s perspective to give the lawyer an opinion as to whether the witness’ testimony comes across as credible or not to them.

We now live in an era of time where people get their information by both seeing AND hearing the information presented by way of television or the internet. Hence, taking a video recorded deposition is a better way to preserve and present testimony taken from a defendant in any case.

In cases involving the deposition of a foreign national requiring a translator to translate the testimony from English to another language and vice versa, sometimes there is a dispute in as to whether the translation of the testimony was correct or not. By video recording the deposition, the court can independently review the testimony with the Court’s appointed translator to insure that the transcript of the testimony is correct.

I have taken depositions where the witness rendering testimony took an inordinate amount of time to figure out an answer which would lead the person watching a video to conclude that the answer was contrived. You wouldn’t get that same impression if all you had was a written transcript of the testimony given. Hence, video recording a deposition along with having a stenographer present is preferable to just having a court reporter present to transcribe the testimony particularly when "how" the testimony is rendered is as just as important as what the testimony is given during a deposition. Giving a jury a video recorded deposition rather than merely a written transcript provides the jury with a better record by which the jury can judge whether the testimony rendered is credible or not.

If you or a loved one have been injured due to no fault of your own, you should contact an experienced trial lawyer to schedule a free initial consultation. Boise Trial Attorney Alan Morton has over 34 years of experience helping victims of personal injury or wrongful death obtain compensation for the injuries and damages. You can reach Mr. Morton by calling 208.344.5555 or toll free at 888.716.8021 or by completing an online contact form. Mr. Morton would be happy to visit with you at his office or your home, workplace, hospital or any other convenient location to help you better understand your legal rights and remedies.


Alan Morton
Advocate for Justice/Trial Lawyer