by Art Raedeke

Like lead-off walks in baseball, deposition testimony can come back to haunt you.  With more frequent videotaping of depositions, the need to adequately prepare witnesses for their testimony has grown immensely.  A bad deposition played on videotape at trial can have an enormous impact on jurors.  All too often, however, witnesses go into depositions ill-prepared, especially when their testimony is recorded on camera.  In addition to working with the witness regarding the substance of the testimony, it is important to provide him or her with some guidance concerning on-camera demeanor.  Following are a few ways to enhance videotaped deposition testimony.

Set the Stage:  The attorney defending a videotaped deposition must make sure that the stage is set so as to present the witness in a favorable light.  Background, lighting and camera angle have a huge impact on how a witness comes across on video.   Allow sufficient time before the deposition to do some test runs to see how the witness (or a stand-in) looks through the camera.  Make sure the ambient light is adequate and does not turn the witness into a “shadowy” figure.  If necessary, have additional, soft lighting brought in.  Place the witness against a neutral background that does not distract the viewer’s attention.  When needed, most videographers can provide an appropriate sweep for this purpose.  The camera should be positioned close to the deposing attorney in order to get as much of an “over the shoulder” angle as possible, thereby providing a face-to-face view of the witness.  Since the witness should be instructed not to look into the camera, this alignment provides optimal eye contact with the viewer.    

See to it that the witness has a chair that is suitable for long stretches, but that is not too comfortable.  Avoid chairs that rock, recline or swivel.  A stationary chair will encourage the witness to maintain the desired posture.

Provide the witness with water (not caffeinated drinks), but counsel him or her to drink only when necessary and, if possible, during breaks in the questioning.

Offer guidance as to proper attire for the deposition.  How the witness dresses depends on and should be consistent with his or her position, although it is best to err on the side of formality.  In general, attire for a deposition should be similar to what the witness would wear to court.  Suit or sport jackets should be neutral to darker shades and not noticeably patterned, and ties or jewelry should not be attention-getting. 

Remember the Audience: The witness being deposed should bear in mind and direct his or her testimony to the audience of most importance - the finder(s) of fact.  In the deposition setting, where the interaction is almost exclusively between the questioning attorney and the deponent, it is far too easy to forget that the testimony must be accessible and convincing to those who will weigh it later on.  It is far too tempting for the witness to wrangle with the person asking the annoying questions.  For this reason, the same behaviors that enhance in-court testimony apply to videotaped depositions, as well.  Jurors (and judges) assess witness credibility in large part based on perceptions of responsiveness.  Those viewed as making an honest effort to answer questions are received more positively, while those perceived as less responsive are suspected of having something to hide. 

Watch Body Language: Videotaped deponents are always on camera, and because the camera tends to accentuate body and eye movements, they must comport themselves accordingly.  The key to making a positive visual impression on viewers is for the witness to be engaged in the process - sitting upright or leaning into the table slightly.  The safest and often most comfortable position for hands is to keep them out of sight on the arms of the chair or folded under the table.  Make sure the witness does not have anything to fidget with.  Hand gestures can be used, but with constraint.

Eye movement is especially noticeable and, therefore, important in a videotaped deposition.  The witness should maintain a level gaze by looking primarily at the questioner, not into the camera.  In between questions, relaxed glances around the room help break the monotony.  When answering a question, the witness should avoid looking down or up and should certainly not look at the defending attorney.

If the witness gets tired or uncomfortable during the questioning, make sure to take a break.  Great damage can be done when a witness is not in peak condition to deal with a very challenging situation.

Control the Pace:  Maintaining control of the pace of the questioning is particularly important in a videotaped deposition.  Testimony read from a transcript does not reveal extended pauses prior to an answer, but a videotape does.  Videotaped deponents must, therefore, be mindful of not taking too long to “come up with” their answers.  At the same time, however, witnesses should not feel pressured to rush their responses and

should not let the deposing attorney dictate the pace of the exchanges.  As with trail testimony, the witness being deposed should from the beginning establish the pattern of pausing briefly before responding to a question.  Doing so permits the witness to think about the question and formulate a complete response.  Second, it prevents the opposing attorney from peppering the witness with rapid-fire questions that illicit ill thought-out responses.  Third, it allows the defending attorney to object, if appropriate.

Review all Documents:  Before answering questions about documents, witnesses should take as much time as needed to become thoroughly familiar with them, even if doing so creates dead time on the video.  It is imperative that the witness determines the nature and content of the document, as well as his or her knowledge of and relationship to the document.  Only then is it possible to appropriately answer questions about it.  Once the questions about a specific document have ceased, the witness should set it aside so as not to have it interfere with concentration or proper body language.

Conduct Practice Sessions:  Because most witnesses have little prior experience with videotaped depositions, practice is essential. Conducting one or more Witness Preparation Workshops can identify unfavorable behaviors and enhance ultimate witness performance.  In these sessions, usually conducted in conjunction with a jury/communications consultant,  the witness is examined in a manner similar to that of the pending deposition and the examination is videotaped.  Questioning should range from the general, to the annoying, to the aggressive.  After each segment of ten to fifteen minutes, the witness, the attorney and the consultant review the videotape to assess the witness’ performance.  Initially, it is often helpful to let the witness do a self-critique, followed by specific pointers from the attorney and consultant.  This process is an effective way to identify weaknesses and reinforce strengths in both what the witness says and how he or she says it.