5 Ways Video Can Help Your Litigation Strategy

While it’s true that more lawyers are embracing technology, a substantial percentage of them are not leveraging opportunities to use it in the courtroom.  According to the American Bar Association (ABA)’s 2018 TechReport, roughly 1 in 5 of the lawyers surveyed do not leverage any form of technology in the courtroom.  On top of this, about a third of the lawyers surveyed mentioned they do not have the necessary training to use technology to their advantage.  These developments don’t bode well for winning over today’s jurors.  Jurors demand that issues not only be discussed, but visually presented in easily comprehensible ways. Using video allows lawyers to leverage liberal federal and state procedural laws that embrace multimedia evidence.  Here are some ways that litigators will benefit by using video in their litigation strategy.

  • Using Video to Boost Your Opening Statement

Research shows that 80-90% of jurors will have already made up their minds on how to rule on cases during or after opening arguments.  Naturally, lawyers must do what they can to win over jurors during their opening arguments to increase their odds at prevailing. Federal courts give lawyers leeway regarding how they can use video during their opening statements. Federal Rules of Civil Procedure (FRCP) Rule 32, for example, permits parties to use taped deposition testimony for any purpose the Federal Rules of Evidence allows.  In fact, lawyers in jury trials must present deposition evidence in non-transcript format if they’re not using it for impeachment purposes.  However, parties may still need to submit transcriptions of their deposition clips, especially if they plan to offer these clips as substantive evidence.  Many states also allow lawyers to incorporate video into their opening statements.  Texas, for example, permits non-stenographic depositions and related transcripts to be used for any purpose during civil proceedings. California also allows parties to use taped depositions so long as certain filming and notice conditions are met and any prejudicial or objectionable sections are edited out.  Incorporating taped pre-trial testimony can be effective for adding visual elements to your opening statement and providing deeper context to the certified transcripts juries will review. 

  • Provides More Emotional Impact When Impeaching Witnesses

While lawyers can use strategic cross-examination questions to impeach a witness for making inconsistent or false statements, they can leave a stronger impression on juries by showing filmed proof of those statements as the witness squirms on the stand. Under FRCP Rule 32(a)(2), parties can submit pre-trial depositions into evidence in any non-transcript form—including in video format—for the purpose of impeaching or contradicting a witness’s testimony.  Texas, New York, and California have similar stances regarding how depositions can be used in state court proceedings. This strategy would not only help shed light on the deponent’s contradictory responses, but also place heightened emphasis on telling non-verbal cues accompanying the witness’s inconsistent or dishonest responses.  Featuring these details can provide added power to your impeachment efforts, especially since the deposition transcripts juries end up reviewing don’t include notes on the deponent’s body-language or physical and emotional reactions to questions.

  • Allows Juries to Consider Testimony of Unavailable Witnesses

Unfortunately, emergency situations can happen that can keep you from bringing witnesses onto the stand. With video, these obstacles can be surmounted. FRCP 32(a)(4) and related state procedural rules generally allow parties to submit videos in lieu of in-courtroom depositions in circumstances where the witness died; is located more than 100-150 miles from the site of the hearing or proceeding; or is hampered by illness, age, infirmness, or imprisonment.  Subject to certain circumstances and motion outcomes, California and New York also allow parties to submit pre-trial depos of licensed healthcare practitioners even if they are otherwise available to testify . The rules also provide leeway to admit taped or livestream depositions in other scenarios where a witness’s testimony must be taped in the interests of justice after considering the benefits of in-person testimony before an open court.  By embracing video, parties can include key testimony onto the record that would have otherwise be precluded by circumstances beyond the control of the parties and their attorneys.

  • Help Juries Better Digest Complex Information During Trial

While the digital revolution has revolutionized many aspects of our lives, it has had a detrimental effect on our attention spans.  One study from Microsoft Canada revealed the average human’s attention span dropped from 12 seconds to 8 seconds from 2000 to 2013.  For comparison’s sake, the attention span of a goldfish clocks in at 9 seconds.  To win over jurors, you’ll need to engage them off the bat—and visual aids such as video can do just that.  One recent study from Australia, a common law country like the United States, found that a third of the experienced civil jurors surveyed found it difficult to concentrate in cases lasting more than 10 days, compared to a fifth of jurors who sat through cases of all lengths.  When asked for feedback on ways to improve the courtroom experience, 17% of the jurors who provided specific feedback stated they wanted lawyers to provide visual aids to assist them with the decision-making process.  Using video can be a great way to weave in audio and visual elements that leave a lasting impression on jurors.

  • Can Help with Developing Your Overall Trial Preparation Strategy

Video’s role in litigation isn’t limited to your courtroom activities. You can use it just as effectively when preparing for your case outside the office, including using it when giving feedback to witnesses on their conduct during mock questioning.  Taking these steps will help you meet your ethical obligations for competently representing your clients, so long as you don’t influence clients and witnesses to testify falsely or present answers intended to thwart discovery or be misleading.  You can also use video to evaluate how your associates are handling different lines of arguments and counterarguments, and even use it to supplement feedback from mock juries and trial consultants.

Regardless of how you use video in litigation, incorporating it can greatly increase your odds of helping your clients prevail in litigation.  CaptureCast Legal can help lawyers of all technical backgrounds harness the power of video testimony efficiently and cost-effectively.  Contact us to see how CaptureCast Legal can help with your litigation strategy.

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