Depositions LegalTech
Deposition Technology
John J. Cord I
t is axiomatic that ninety percent of written discovery is useless, which is why we rely on depositions. Depositions are where cases are won and lost—the
information learned in a deposition can either force the opposing party’s hand in settlement, or provide the final axe swipe at trial. In either event, depositions are the heart and soul of the circuit court case. We go to great lengths to prepare for depositions—find
sample outlines; review the existing evidence; consult jury instructions to verify what we need to prove; review prior depositions from the deponent; and plan out a Rules of the Road-centered “Miller Mousetrap.”1
But how much thought
do we give to how the deposition is to be used? Tere are several technology-related questions regarding depositions that you must ask yourself.
Some of these
questions must be asked before the deposition (at least 30 days before, in some instances).2 the deposition on videotape?3
your order for the deposition from the court reporter?
Should the Deposition be Videotaped? Tere is a vocal minority of lawyers who advocate that
most depositions, particularly those of defendants, should be taken by video. Te logic behind the argument is compelling. First, defendants tend to be less polished for the deposition early on, and a video can highlight a number of features that are useful for the jury in evaluating the case and credibility of the witness. Defendants frequently attend in their street clothes. Depending on how informal their dress is, this can indicate to a jury that the defendant does not take the case seriously and is not respectful of the process. Also, defendants
are rarely fully prepared for their deposition, even when it is 1 Rick Friedman And Pat Malone, Rules Of Te Road (2010); Philip Miller, a frequent speaker on the AAJ lecturing circuit, created “the Miller Mousetrap,” a tactic used at trial or deposition to show that the witness either agrees with the common-sense rules of the road, or looks foolish for disagreeing.
2 Md R. Civ. Proc. 2-412(B). 3 “Videotape” is a carryover term. Most courts have DVD players, which is the preferred format for replaying a video deposition. Furthermore, if you are taking a laptop and a projector to trial, DVDs can be played onto the big screen straight from your computer.
First, is it important to have Second, how should you place
noted as a video deposition. A video can highlight that lack of preparation in a way that a paper transcript cannot. Lengthy pauses after questions are asked are invisible in the transcript, but almost painful to watch by video. Facial expressions, attitude, and posture can influence a jury’s feelings about the defendant. Even if a defendant cleans up for trial, dresses in a suit,
and gives the Court the proper deference, a deposition, including a video deposition, can still be played back at trial. Instead of reading both sides of a boring transcript, the video brings the case alive for the jury. Presented to them on the big screen in 30-second snippets, the video is a welcome break from the talk-fest that is a trial. It will grab the jury’s attention, and they will remember it best among all of the testimony. Te way to present it to the jury is simple.
Your
videographer should provide you a DVD, inclusive of software enabling you easily and quickly make clips of deposition by selecting the portion of the transcript you want to use, and converting it to a video file on your computer.4
Many court
reporting companies make this so simple that it can actually be done while you are in trial in thirty seconds, making it the perfect tool for cross-examination and closing argument.
How to Place Your Deposition Order
In these days of cost consciousness, every law firm should be mindful of simple ways to save money. At the conclusion of a deposition, when you place your order, you have an opportunity to do just that. When the court reporter asks you what you want, the I always order an E-Transcript and an
answer is simple.
ASCII file to be sent to me by e-mail, and I specify that I do not want a hard copy. Tis gives you maximum flexibility, without the postage costs (and, most court reporters seem to
4 Tese video files can also be incorporated directly into a PowerPoint presentation. Trial Reporter / Winter 2011 55
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