Lawyers need to catch up with the times and incorporate video techniques into their trial presentations. Video is now inexpensive and easy enough that it can be used economically in most cases.

This post will discuss the use of video depositions for impeachment at trial. Impeachment is technique where an attorney uses the prior sworn testimony of a witness to demonstrate to the jury that the witness has changed his or her story. Impeachment with video is far more devastating to the liar on the witness stand than the traditional method using a written deposition transcript.

Impeachment with a deposition transcript can be a very effective means of demonstrating that a witness is a liar. The weakness of impeaching a witness with deposition transcripts is that it requires the jurors to hear testimony, remember the testimony, hear the lawyer read back a portion of a prior deposition transcript and mentally put the pieces together in a way that causes the jurors to believe the witness lied or changed her story. While almost all jurors can do this, the process requires concentration by the juror and it requires the juror to make assumptions about the witnesses’ body language during the deposition. The assumptions the jurors make may not be the assumptions the lawyer would like the jurors to make.

Video has obvious advantages. The jury sees and hears the witness answer a question at trial. Then the jury sees and hears the witness testify on video in a manner that directly contradicts the trial testimony. The jury can evaluate the witnesses’ body language both times. The jury can hear any nuances in the witnesses’ tone of voice. Video captures more of the truth. This is primarily an advantage for the impeaching lawyer. However, there will be times when the video demonstrates that the witness meant something different than what the lawyer would like to argue. The important thing to remember, however, is that the truth has been captured more fully and persuasively.

Technology by itself does not win trials. However, technology combined with aggressive, thorough preparation can make a tremendous difference in the outcome. Our firm’s practice is to videotape most depositions. We use a product called TrialSmart to display video depositions synchronized with the text transcript. It is a simple matter to synchronize the video depositions with the transcript for display at trial. We use a projector at trial so that the jury can see the impeaching testimony as large as life. The key to using this technology, is preparation. By carefully preparing for video depositions and taking the time to prepare video clips on key issues in our cases, we have had great success in developing compelling evidence at trial.