Let’s face it—depositions can be a stressful experience for even the most seasoned witnesses. While most litigators have experience responding to the taxing twists and turns associated with real-time depositions, inexperienced witnesses will not be as savvy when answering questions from stealthy attorneys without the comfort of a neutral judge in the room. While these types of troubles aren’t documented in the pre-trial deposition transcripts that parties eventually submit into evidence, these protections will go out the window if the deposition is also taped. If your deponents fail to conduct themselves with poise on camera, you run the risk of seeing their poor body language and non-verbal cues magnified on-screen at trial.
With the right tools in your arsenal, you can efficiently coach inexperienced expert witnesses and lay witnesses from becoming liabilities into assets at the deposition table. With video, you can do this cost-effectively and give your legal team and consultants the ability to easily provide real-time feedback. Here are five ways you can use your firm’s in-house video platform to help your deponents survive the no-holds-barred environment of pre-trial depositions.
- Educate Witnesses On the Deposition Process
As lawyer John G. Balestriere described in a recent Above the Law article, witnesses are more vulnerable to lawyers’ trickery and chicanery in the deposition room than on the witness stand. Deponents accustomed to the decorum and formalities of in-trial testimony will be in for a shock once they realize how unruly depositions can be, as this deposition from renowned litigator Joe Jamail makes clear. For one, there’s no judge present to keep attorneys and witnesses in check, although parties can request sanctions after the deposition. Also, lawyers are limited to how they can object to their opponents’ conduct and questioning. New York, for example, generally prohibits attorneys from raising objections during the deposition unless they fall within a select group of deposition-specific objections that would be waived if not raised. Texas similarly permits attorneys to make three types of objections during a deposition. These include “Objection, leading” and “Objection, form” for attorneys’ questions, and “Objection, non-responsive” for deponents’ testimony. While state and federal civil procedure rules do allow for sanctions against attorneys for unconscionable conduct during depositions, deponents should be made aware of what they should expect once their depositions begin. With video, you can show deponents footage of real or mock depositions to help them better understand the deposition process. You can also use your system to provide technology and conduct pointers for deponents preparing for a remote deposition.
- Train Witnesses on How to Respond to Anticipated Questions
Given the lax restrictions that accompany depositions, you must ensure your deponents avoid getting caught off-guard and divulging more information than necessary during their depositions. Ideally, your witness should only say enough to affirm or deny an opposing attorney’s questions without sharing any new details that could undermine the theory of your case—all while being truthful and not purposely misleading. You should also coach your witnesses on how to respond effectively to compound questions, assumption and speculation-based questions, and paraphrased answer questions since these categories of questions can all prompt witnesses to divulge more information than they should. Taping your deponents during mock sessions and going over their specific responses with them can be an excellent way for you to help your deponents become aware of any pressing issues they need to work on during their depositions.
- Analyze Witnesses’ Body Language and Non-verbal Cues
With video, you can capture your opponent’s deponents in an unflattering light during their depositions and use this footage to impeach them on the stand with flair. Your adversaries, however, can follow the same playbook with your deponents if your deponents are unable to carry themselves effectively in the deposition room. As you prepare your witnesses through pre-trial discussions and mock depositions with your legal team, you can analyze what types of tics, reactions, and body language would undermine the quality of their deposition testimony. By taping their conduct during mock sessions, you can also show your witnesses the different types of situations, questions, and conduct that can trigger negative body language and coach them on ways they can hide or otherwise tone down these traits in the deposition room.
- Train Witnesses for On-Camera Conduct
Although advances in video technology have made video deposition technology less intrusive, lawyers should make every effort to ensure that their witnesses are aware of proper on-camera conduct in the event their depositions end up being recorded. Reactions such as looking away from the camera, turning to counsel for advice, or nail-biting can paint your deponents’ answers in a negative light before judges and jurors if that footage is played at trial. Attorneys can play deposition practice sessions with witnesses to go over these details and help highlight ways deponents can improve their on-camera poise. Appearances will also matter as well, especially if your deponent’s deposition is played in court. While deponents should ideally dress for an on-camera deposition as they would for trial, lawyers can use their video tools to have their deponents wear different outfit options and, if applicable, send test footage to trial and jury consultants for related feedback.
- Educate on How Witnesses Can Respond to Aggressive Tactics from Opposing Counsel
Because attorneys run the show at depositions, opposing lawyers may be more willing to take risks and engage in conduct that risks being inappropriate for spooking or intimidating witnesses into divulging more information than needed. You can help your deponents work around this by running through mock depositions involving aggressive questioning. Lawyers can use their in-house video tools to not only film these mock depositions, but allow their deponents, legal team, and outside consultants to view and provide feedback on them in a secure online environment. At the very least, you should set aside time with your deponents to talk through the various scenarios that could occur before opposing counsel and develop plans of attack for responding to them and making relevant objections.
CaptureCast Legal’s suite of video recording tools make it simple for attorneys to prepare their witnesses for depositions regardless of their technical background. Contact us today to learn how CaptureCast Legal can help boost your firm’s litigation capabilities.