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Show Me How It Happened: Videotaped Depositions And Their Impeachment Benefits

Depositions are critical to a case and often determine whether you win or lose. They can be used to impeach a witness at trial, undermine his or her credibility and ferret out details that otherwise would not be disclosed in written discovery. Given the key role depositions play in cases—particularly for the defense—serious consideration should always be given to videotaping the depositions of key parties and witnesses.

Videotaping a deposition can enhance its value by further highlighting any inconsistencies or misrepresentations made by a witness, allowing the jury to look into the eyes of a deponent as he or she tells an untruth. There is something compelling about seeing a lie in the flesh. In the era of smart phones, Facebook, and technology overload, jurors are accustomed to the instantaneous and visual delivery of information, which is yet another reason why videotaped depositions are that much more compelling today.

Videotaped depositions capture the facial expressions, body language, voice and tone of the deponent. Such nuances are helpful to a jury that will likely receive an instruction from the trial judge advising that the jurors may consider how a witness looked, acted, and spoke while testifying when deciding whether to believe a witness’s testimony. (CACI Jury Instruction 107.)

Another benefit of a videotaped deposition is when a deponent is compelled to demonstrate on camera how a key act or incident occurred. Of course, a request to reenact a scene on camera will likely provoke objections from the deponent’s attorney, along with an instruction by the attorney to the deponent to limit the answer to verbal testimony only. However, such objections are erroneous because the Supreme Court in Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101 held that compelling a deponent to answer questions at a videotaped deposition was not limited to verbal answers and that a deponent can be compelled to reenact an incident. (Emerson Electric Co. v. Superior Court at 1110-1111.)

The benefit of the Emerson Electric case was realized in a recent videotaped deposition of a plaintiff in a slip and fall case defended by our firm. The plaintiff was asked at the beginning of her deposition how she allegedly slipped and fell. Later in the deposition the plaintiff was asked again how she slipped and fell. Then, near the end of her deposition, plaintiff was asked to reenact how she slipped and fell. Sure enough, each time the plaintiff retold the incident, there were inconsistencies as to which foot slipped first and how her body moved and impacted the ground. Needless to say, confirmation of those inconsistencies visually provided ample evidence of the weaknesses in the plaintiff’s case and will be used to leverage a favorable settlement or verdict for the defense.

Words on a page are one thing. Watching the delivery of such words by a person on video is quite another. For cases with potential exposure that warrant the slight extra cost, videotaping depositions of parties and key witnesses is an opportunity and tool that warrants serious consideration. If you still doubt the value of videotaping a deposition, ask yourself this question: Wouldn’t this article have been more interesting if you could have watched its author deliver it verbally, rather than you reading the words on this screen?

ABOUT THE AUTHOR: Janice Walshok is an associate at Tyson & Mendes LLP. She has experience with conducting civil jury trials and specializes in insurance bad faith, premises liability, and high net worth insurance issues. Contact Janice at 858.263.4121 or jwalshok@tysonmendes.com.

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