United States: The Ghost Of Depositions Past

Last Updated: December 30 2016
Article by Kevin P. McCoy

Deposition testimony plays a powerful role in case resolution. Themes are developed, admissions are gathered, and claims and defenses are vetted. Depositions are also a great opportunity to size up how a witness will "play" with a fact finder later in the case.

At some point in the case, decisions have to be made concerning the best way to maximize the impact of a deposition for later use. Often, this involves a decision with the client on what strategic advantages can be gained by videotaping witness testimony.

Some lawyers hold the view that every deposition of every witness in the case should be videotaped. I do not hold that view. There are some circumstances in which it is better to have a cold record of the testimony instead of capturing certain aspects of the witness that a videotape would record.

For example, if you are deposing a fact witness who is thought to be hostile to your client's position, and they are not going to be within the subpoena power of the court at the time of trial, you have to consider whether you want the other side to have the benefit of video available to use at trial – assuming they do not intend to video the testimony on their own accord. Similarly, if you are deposing a witness who is expected to have emotional testimony, such as a grieving family member, it is often better to preserve the encounter through the black and white letters on a page.

That said, there are times when confronting a witness with a video of their performance during a discovery deposition can create killer moments in a case. Sometimes, just the fear of that confrontation can be enough to do the trick, as I experienced in a case I tried several years ago.

I don't remember how it came to pass that I was going to take the deposition of the opposition's sole expert in the case, but I pulled that duty. The expert was a seasoned professional who had been hired to give an opinion as to whether my client acted in a commercially reasonable manner on a central issue in the case. We elected to videotape the deposition so the encounter would be preserved for trial, which was becoming more likely as the case dragged on.

The deposition started like any other, and the expert seemed comfortable with the process. She was professional and put together. Not long after, though, her utter lack of preparation for the deposition started to show. As the questions got harder, she became more uncomfortable. She was "winging it," and it showed. All the while, the video was rolling. The deposition went a full day. By the end, the expert was mentally and physically exhausted by the experience.

I left the deposition feeling good about the record and the cross exam we would have available should the case go to trial. I felt even better about things after I had the opportunity to read the transcript and sync the testimony with the video. Those who've done their share of depositions, particularly those that are long and involve complex issues, know that with so much information swirling around, it is hard to fully appreciate the nuances of testimony or how a witness is performing when you are in the heat of the moment or going on hour number seven of testimony. Video, however, catches it all.

As we evaluated our trial strategy, we decided that the expert would have such a terrible time on the stand we would not designate a counter expert. We would, in the words of my trial partner, go "naked" and rely solely on the deposition testimony we had to pick the expert apart at trial.

I again pulled duty on examining this expert at trial. My approach, however, was rather unconventional—or so I was told after it was over. I started my cross by asking the witness if she recalled the video deposition I had taken several months prior. She did. I asked her if she remembered she had sworn to tell the truth. She did. I asked the technical assistant we had hired to put up the video screen with the expert's video deposition on it and hit pause. He did. Next I asked the expert to confirm that if she was unsure about any of her answers to questions, we could play the video of her testifying under oath at her deposition to help her remember what she swore to at that time. She agreed. At this point, the impeachment table was set, before I asked my first substantive question.

On multiple occasions during the exam, the witness would stall on key, critical issues as she tried to think of a way around the answer she knew she had to give, but did not want to give. Other times, she would try to prop up her opinions with the support she was lacking at the time of her deposition.

Each time this happened, however, I would ask the expert if she wanted me to play her video deposition to help refresh her recollection of her sworn answer in the deposition. Each time, she declined the offer and instead agreed with the point established by my question. By the time the expert left the stand, she was more shaken than she had been at the conclusion of our first encounter. The only notes my trial partner took of the entire cross exam said simply "She's gonna cry" with a time stamp of the moment when the expert nearly broke into tears.

We won that case. In the judge's written order, she found the expert was so lacking in credibility, she gave no weight to any of her trial testimony. All of this, and I never played the first second of the video deposition. The ghost of depositions past was enough to do the trick.

Republished with permission by DRI, Trials and Tribulations Volume 22, Issue 4

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.