As any litigator knows, cases can ride on the credibility (or lack thereof) of material witnesses. And because most civil lawsuits settle before trial or end with a summary judgment ruling, the only moment most trial lawyers get to highlight or undermine a witness’s credibility comes at deposition.
Having high-quality deposition videography is essential for demonstrating witness credibility or incredibility. A written transcript alone does not capture the facial expressions, voice inflections, speech patterns, and other nuances that influence credibility assessments. Only video imagery can do that. Using a leading remote testimony platform is the most efficient, practical way to generate top-quality deposition videography.
Deposition Videography: the Visual Elements of Witness Credibility
What makes a witness credible? The answer is complex in nature and takes several factors into account. Credibility — the capacity for or state of believability — is an elusive, subjective standard. It varies by witness, listener, setting, and subject matter.
But most seasoned trial lawyers will tell you that all credible witness testimony features a few core traits.
- It’s genuine, lacking any hint of artifice or performance.
- It’s transparent in establishing the basis, scope, and limits of a witness’s knowledge.
- The information conveyed falls within the audience’s expectations for what the witness can or should reasonably know.
Making a credibility assessment takes more than hearing what a witness has to say. It’s as much a visual task as an auditory one. A witness’s posture, eye movement, hand position, breathing, facial coloring, cadence, enunciation, and muscle tension convey at least as much relevant information in assessing their credibility as do the words they speak.
Indeed, it’s a bedrock legal principle that you have to see a witness to make a thorough assessment of their credibility. The Sixth Amendment to the Constitution entitles criminal defendants to a right of confrontation that requires prosecution witnesses to testify in court subject to cross-examination.
Rules of evidence limit the use of hearsay — an out-of-court statement offered for the truth of the matter asserted — precisely because a jury cannot assess its credibility. And appeals courts almost always defer to a trial court’s credibility findings because judges who watch live witness testimony obtain information that a paper record cannot communicate.
Witness Credibility and Video Depositions
Since the dawn of quality videography, civil litigators have embraced its potential to enhance the credibility of a witness’s deposition testimony. Civil litigation is largely a pre-trial, discovery-centric endeavor. Most disputes settle long before lawyers pick a jury. Judges decide a material portion of the rest on summary judgment motions. The only live testimony that happens in the bulk of civil cases occurs at depositions.
Before videography became the norm, paper transcripts fostered inefficiency and inaccuracy in pre-trial practice. A paper record can make a credible witness seem suspect and a prevaricating witness seem truthful. Lawyers traded on the ambiguity of stand-alone written transcripts, leading to potentially unjust outcomes and wasted court and client resources.
Everything changed when litigators began filming witnesses in depositions. By capturing the visual and auditory information necessary for accurate credibility determinations, they all but eliminated the potential for distorted readings of the discovery record. The videography of a clearly credible (or incredible) witness became a powerful piece of evidence to brandish at an opponent and present to a judge and jury.
You don’t have to look far for examples of how high-quality deposition videography can be a litigation game-changer. The internet is rife with clips of deponents — from small-time civil litigants to big-name CEOs—breaking cardinal rules of how not to testify. Search around, and you can also find footage of well-prepared, credible witnesses answering questions clearly and convincingly.
Excerpts of deposition footage reflecting the best (or worst) of an interrogation can go further than any other medium to prove a material fact or cast doubt on an opponent’s believability. Sometimes, a minute or less of videography can win or lose a case in front of the jury or when embedded in a summary judgment motion.
Capturing Reliable Remote Deposition Videography
Of course, not all deposition videography is created equal. Video deposition evidence only works if the audience can see, hear, and understand the witness. Videographic missteps, from dim lighting to muffled sound to awkward framing, can distract — and even anger — the viewing audience.
That’s why, pre-internet, lawyers paid top dollar for professional videography teams to produce expertly crafted deposition videos, complete with custom backdrops, lighting, and high-tech microphones. This practice is still in place today and evolving.
A large and increasing proportion of deposition videography gets captured via online video. Recording deposition video that way can be far less expensive and much more convenient than summoning a witness, opposing lawyer, and film crew to your conference room, provided that you select the right tools for the job.
Some lawyers choose to use generic video conference platforms for their video depositions. To capture a video record of the proceedings, they rely on native or third-party screen-capture tools and use still other applications to edit the raw footage into material suitable for use in court. The results of that approach can be a mixed bag.
Cobbling together multiple solutions introduces technological complexity, risks degradation of audio and video quality, and limits the customizability of the final product. It’s not impossible to produce high-quality deposition videography that way, but it can easily amount to putting in extra effort to achieve a mediocre outcome.
Increasingly, lawyers who want a more reliable way to capture top-quality deposition videography are turning to purpose-built remote deposition tools to do the job. Unlike the mix-and-match approach to hosting a deposition on one platform, capturing video of it with another, and sharing exhibits via yet another, attorneys are turning to a more intuitive approach.
A Virtual Legal Platform for Capturing Depositions
Today’s leading remote deposition solutions package in a single product all the tools and services litigators need to schedule, prepare for, take, and record witness testimony. Creating high-quality videography is a core function of these purpose-built tools. A remote deposition platform satisfies the following functions:
- Serves as the virtual location of the session
- Links all participants via streaming video and audio
- Gives lawyers control over video and audio recording
- Supplies the tools for on-screen sharing and reviewing of exhibits with witnesses
- Creates a real-time rough draft transcript, automatically synching video and audio with the transcript
- Offers post-deposition professional editing services to compile clips and highlights suitable for embedding in pleadings or using in court
There’s no better way for today’s lawyers to record reliable, convenient, professional deposition video that highlights all the elements necessary for a viewer to assess a witness’s credibility.
Remote Legal is a leading provider of remote deposition solutions and services. Our purpose-built deposition platform gives litigators the tools and functionality they need to capture top-quality witness videography, ensuring that the discovery record allows for complete and accurate witness credibility assessments. To learn more about our products and services, schedule a demo.
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