To Video Impeach or Not To Video Impeach?

To Video Impeach or Not To Video Impeach?

June 14, 2018
 

As a trial technician, I'm approached by counsel nearly every trial to assist with the impeaching of a witness on the stand using their video deposition testimony.  While it sounds like an unbeatable and convincing method of delivering the complete story to the jury, I typically advise counsel both on the benefits and the risks of video versus regular transcript impeachment. 

It's a crossroads moment and there are important considerations to make and questions to ask before choosing the video impeachment path - because unspoken communication can impact a jury just as much, if not more, as spoken word. Ask yourself, did the witness look particularly uncomfortable during his/her testimony? Did he/she take long pauses before answering a question? Did he/she look to counsel for help? Your jury will likely key into the dramatic testimony and all of these manifestations of discomfort may be perhaps be perceived or interpreted by the jury as deception. If that's your aim, then by all means, video impeachment is the way to go!

It's also critical that counsel review the intended deposition designations ahead of time. Now, we all know how long and tedious it can be to review hours of deposition testimony -- and that's exactly where DepoView comes into play!  DepoView is a legal software that' easy to use, intuitive, and utilized by attorneys and paralegals to quickly navigate and review synchronized deposition testimony. Navigation is simple via page, line, or word search. Not only is it a great review tool but you can also pass along the disc to your expert so that he/she can review litigation counterparts.

Now - to play devil's advocate for a moment - Let’s say your witness is cool, calm, and collected. Hands are folded, an easy smile is present, and he/she is consistently answering questions posed with confidence. What can be done?

This is when I'll typically suggest a simple and clean digital display of the black and white transcript for the jury's review. In this situation, it's perhaps best to let the jury employ "theatre of the mind" to paint their own picture of how a witness presented when asked these critical questions. Sometimes, the transcript will present cleaner and quicker than a video testimony clipped live.  Much like the video impeachment, the jury will perhaps assume that, if something is being called out in the courtroom regarding the witness’ testimony, it commands a little more attention. It’s also worth noting that most depositions in a lawsuit are transcribed only, not recorded on video. It’s best to not discount transcript-only, as it can easily serve you just as well for impeachment as video designations.

All in all, video impeachment is an important piece of the courtroom cross examination and can have the intended impact when used strategically and with thoughtful advance preparation. While video may seem to be the more exciting means to control your witness, it’s always important to take a moment, step back, and ask, Which would present better to my jury this time - video or transcript?

Let Video Discovery Inc. create a synchronized DepoView disk of your next deposition, and experience for yourself a truly easy and expeditious review!

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Since initially joining the Video Discovery, Inc. team in 1999, Tyler Dorsey has successfully developed the litigation support division via leading trial technologies and graphic presentations.  He is proficient in a wide array of presentation and design softwares ranging from 
Trial Director to the Adobe Creative Suite.  He is often requested to speak at conventions and CLEs for his experience with both plaintiff and defense councils in both civil and federal circuits.