Video Deposition Tip: Where to look while answering

If you haven't prepped your witness with on-camera practice, shame on you. Oh, did that slip out? Sorry.
Okay, if, for some lame reason, you can't do a camera test and practice to see how your witness will look onscreen, remember the rule of thumb: The more full-face you see them onscreen, the easier it is for the jury/audience to identify with them. You sit close to the camera so when they look at you, the camera sees most of their face. An exception might be an extreme difference in how they look from various angles. If they have off-putting scars on one side, for instance. Use your judgment.

If you don't know how they'll look, then tell them to look at you when they're answering. Again, you'll be sitting close to the camera.
Some practiced witnesses can look into the camera convincingly. Some.
Some people can get away with looking back and forth between camera and questioner. Again, use your judgment. It's easy to watch them and see what you hope you'll see. Force yourself to see what's really there.

Don't instruct them on the record where to look. You must deal with this ahead of time.
Don't, especially with inexperienced lay witnesses, ask the question then abandon them by burying your face in your docs. Even experienced actors do better looking at attentive, sympathetic faces. The top of your head is not good company in a stressful dep.

You're a very experienced media consumer. Bring that judgment to bear in this high-stakes production.
Your witness, counselor.

Video Deposition Tip: How bad can the other side make your deponent look?

I just edited a settlement video using the discovery dep of the defendant doctor and he had his tie loosened and had two water bottles and two Red Bull cans on the table in front of him.
He was well-spoken and may have made a pardonable medical error, but his tie was loose and he had all those products in front of him.
He explained the occurrence in a way that made sense to me as an informed layman, but his tie was partway off and there were those water bottles and all that Red Bull.

Video is not fair. It is not an Apollonian balancing of facts and probabilities. It's a show; it partly bypasses some of the higher cortical functions and works on the limbic system. It's not enough to have the law and the facts on your side. You need to make the best showing possible, also. To do less is to shortchange your client.

So all those things you can control -- the tie, the bottles of stuff, the background behind the witness, the lighting -- control them.

Video Deposition Tip: HD, SD, 3D

Video now comes in a Super Variety Pak of formats, resolutions, shapes. Here's my judgment call about what to use for video depositions: well-recorded SD, standard definition.
This is the old television shape, before HD appeared with the frame stretched horizontally. And before high resolution pictures made every newsreader nervous about how late in life they're be able to appear.

Here's my thinking: The narrower shape is better for depositions, which are just talking heads. They don't need all that room on the sides of the frame. In fact it's a problem to make sure there's nothing distracting that far to the sides of the witness.
The lower resolution is okay because people look better.

A drawback to using the old SD is that there's a subconscious inference of quality when people see the latest shape and the higher resolution. I don't have any solid research on this, so you're getting my educated guess.

You could hedge your bets by recording in HD, high resolution, horizontal shape, and then just use the middle of the frame. Slice off the sides in the edit suite. That would give the narrower shape with the quality inference of higher resolution. Not to make you nervous, but I'm afraid this is an artistic decision. Not the kind where you press the back of your hand to your forehead and, in french accent, wail, "Ah am an ahtist. Ah can't work like dees!" Just a multi-variant equation with no official solution.

What they don't teach you in law school: Where you sit matters

Video Deposition Tip:
The witness will look at you.
If you want them to be sympathetic, someone the jury will get to know and identify with, all your wonderful witnesses, say, sit close to the camera.
If you want them to seem distant, not really accessible to the jury, sit next to them. People in profile are just less likable, ceteris paribus.
Objection, assuming facts not in evidence!
Okay, look at a few headshots, and see who you like more.
And while you're down there, next to the camera, check out what the camera is actually seeing. The shooter will be proud to show you.
More later about what the camera sees.
Your witness, counselor.

Video Deposition Tip: Objections+editing are your friend

When you get an objection to a question, rephrase and ask it again. Still objected to? Rephrase, repeat as needed. All those other objectionable questions won't be on the video the jury sees. They just didn't happen.
So you got the chance to test the opposing counsel's theory without sullying the jury's record.

Now, you need to work with your deposition producer to get the right edit, with the judge's instructions. But that's another tip.

The jury/audience

Work backwards from the moment you present this bit of evidence. When you hit PLAY, what do you hope happens? What impression do you want to make? What will the jury feel or learn or ignore?
These are some of the first questions I ask when a client brings me a case. An attorney might have a kind of pre-packaged idea about, say, video. "Well, we need a half hour video about X."
But I want to know what effect you want to have.

CLE: Video Deposition Clinic

After shooting thousands of depositions, I've seen everything.
Attorneys whisper the secret to their case to their assistant, simultaneously putting it on the video record.
An attorney won't turn off his cell phone so his case-making questions are sometimes scored with his dark dancefloor ringtone.
Or an attorney who's charming in person refuses to wear his mic so everything he says sounds like he's using the phone in the holding cell at County.
A clattery necklace that draws attention to an abyssal cleavage, also adds the sound of an earthquake to her objections.

The encouraging thing is that younger attorneys know they need this little bootcamp to get it all right. Older attorneys have unknown unknowns, alas.