Why would a jury guy be talking about video depositions?
Because clips from video depositions are often shown to jurors in trial. Or to mock jurors in focus groups that often drive settlements. And way back at the deposition stage, the lawyers usually have their deposition & discovery hat on, and are not necessarily thinking about the twelve strangers who will eventually decide the case.
Fortunately, those twelve strangers are all I think about, which is why I’m not the one masterminding the discovery and motions for summary judgment, and you’re not the one reading the research on psychology and layperson attitudes that drive decisionmaking.
So here are some tips that I have broken into two categories, More Obvious and Less Obvious. I promise there will be five things in here you haven’t considered. And at the very end, I will tell you the one thing that I have yet to see any lawyer do at a video depo but which I think is critical to do.
More Obvious, Probably
1. The witness should wear solid colors other than white. No checks or stripes or anything that will blur and vibrate on screen (called the moire effect). Light blue is always good. No big jewelry, either, because it will invariably bang on the conference room table, which is distracting on playback and – you already know this – it is never good when jurors are focusing on your client’s jewelry.
2. Turn off cell phones. Everyone. Not just silenced, but off. For one thing, some phones will still cause crackling interference with the audio. For another, it will make the NSA wonder where you went.
3. The backdrop should be plain, not a window, and not white. We want to minimize distraction and produce a decent picture.
4. Sit comfortably and sit up… and stay up. It is very easy in the conference room during a long day of deposition for the witness to start slipping into bad posture, boredom, frustration, chair swiveling, and so on. But imagine that the clip your opponent shows the jurors comes from that time, with your client looking bored or hostile or slow.
During your witness preparation, it is essential that you remind the person that the team must imagine jurors watching every moment, because literally any moment might be turned into a clip that gets shown in Opening Statement. So keep your feet on the floor, your hands comfortably together and resting on the table, with no purses, bags, briefcases or any other noun in view of the camera. Only possible exception: one small bottle of water well over to the side, not right in front of the witness.
Less Obvious, Maybe
5. If the deposition is going to involve the witness reviewing documents, then witness preparation needs to include this skill training: First, upon being asked to review documents, the witness should read it as completely as necessary before answering a single question about it. When done reading, put the document down and bring your hands back to rest on top of the paper. Look at the questioner and ask for the question to be repeated. Do not keep holding the paper while answering. If you need to look at the paper again, by all means do so—by picking it up, reading it to your satisfaction, and putting it back down. It looks awful on video to see the witness holding the document while trying to talk to the questioner.
6. A drinking story. I was doing a focus group in Arizona on the plaintiff side of a very tragic and very difficult case, involving claims of wrongful death of a child. The mom was the parent pursuing the suit, and the dad was pretty much out of the child’s life prior to the passing, but was participating in the litigation. Estranged dad was deposed, and a clip was shown to mock jurors. Putting aside that dad wore a sloppy t-shirt to depo, part way in, he reaches off camera and pulls into the frame a 44 ounce bucket of (presumably though not definitively) soda.
The audience laughed out loud.
Even after the incredibly sad circumstances that permeated the case—laughter. Suffice it to say that you don’t want any later viewers to laugh at your witnesses. Moral: no snacks, no beverages other than a plain bottle of water kept out of the frame. For that matter, no pens to fiddle with.
7. Beware the lavaliere microphone on breaks. The microphones do not know that you’re on a break, so they will continue to transmit the sound of your conversation with your client, trip to the restroom, cell phone calls, etc. If you’re mic’d, be sure to flick the ‘off’ switch when breaks begin.
8. Camera Angles. Angles that look down on the witness make the person appear weaker, less respectable, more suspicious, and other culturally ingrained feelings—none of them positive. Angles that look up make the person appear more powerful, commanding of respect, noble. (Leni Riefenstahl knew this 80 years ago.) Don’t use this knowledge for evil (I’m looking at you, Leni), don’t let it get used against you, either. See below.
9. Lighting sources. Light from directly above the witness creates shadows around the eyes which make the deponent look untrustworthy and sinister. Make sure the light is even. If there are recessed lights right above where they have set up the witness chair, move the chair until you find an evenly lit location.
10. Decline the microphone if you’re defending. Another great moment in jurors’ watching clips of a video depo came courtesy of the attorney who was not taking the depo but was mic’d anyway. The audience was treated to a running meta-commentary of sighs, whispered “Jesus Christs,” and exasperated little huffs. Better not to have one. If you have an objection (see my blog post, ‘The Ten Commandments of Objections’ for more), just say “objection” in a normal conversational tone and the other microphones will pick it up. So will the reporter, and the transcript is really what matters anyway.
And Finally, The One Thing Every Lawyer Should Do That Almost None Do
11. Before the depo starts, walk around behind the camera and look at the viewfinder or monitor for yourself. So simple, yet so often overlooked. Check the light (even lighting or weird shadows on your witness’s face?), the angle of the camera (looking up, down, or straight?), the framing (is your witness centered or looking weird for being at the very bottom or one side of the frame?). Look for yourself. Don’t assume.