Trial lawyers are constantly developing dynamic litigation strategies and using new technologies in the courtroom.
Whether we like it or not, litigation is becoming more like a reality TV show, with video depositions trending toward full-scale production sets. But what really goes into making a comprehensive and seamless video deposition?
Speaking of Litigation – Ep. 1 – The New Playbook for Depositions
[00:00:00] Max Cadmus: Today on Speaking of Litigation, we discuss the new playbook for video depositions. Hello, everyone. I’m your host today, Max Cadmus. I’m an attorney in Epstein Becker & Green’s Litigation practice, and I’m based out of our offices in beautiful Princeton, New Jersey.
[00:00:18] Max Cadmus: The inspiration for this episode came from a remark from a very experienced trial court judge at a judicial event. Trial court judges have seen more trials and more juries than most attorneys will ever see in their entire careers. So when they offer you an insight into what works and what doesn’t work at trial, you really ought to listen. Now, this district court judge remarked that he has seen a big change in the way video is used at trials over the past two decades or so.
[00:00:44] Max Cadmus: It used to be that video was kind of exotic and used in special circumstances, and today, the way he put it, trial is becoming a Netflix show and it’s what people expect. And so it’s something we really need to know about and we should talk about. Trial lawyers are starting to really master the medium of video at trial, and their presentations are becoming seamless and slick, but it needs to be used correctly.
[00:01:10] Max Cadmus: And by the way, let me add this disclaimer. Since this is an episode about video depositions, we’re probably going to play a few video clips. If you’re listening to the audio version of this podcast, I highly recommend you check out the video. You can find it on the Epstein Becker Green website or on YouTube.
[00:01:27] Max Cadmus: Also, if you like the information we’re sharing today, please subscribe to the show. Speaking of Litigation is available on YouTube and wherever you get your podcasts. So today, from Epstein Becker & Green’s Columbus office, Victoria Flinn McCurdy manages a national litigation practice, and she’s with us today. Victoria, thank you for joining us.
[00:01:46] Victoria Flinn McCurdy: Thank you, Max. Excited to be here.
[00:01:48] Max Cadmus: And we have Anthony Argiropoulos from the firm’s offices in Princeton, New Jersey. Anthony is a chair of the firm’s National Litigation Steering Committee. Thank you, Anthony.
[00:01:58] Anthony Argiropoulos: Thanks, Max. Hi, Max. Hi, Victoria.
[00:02:06] Max Cadmus: In recent years, the use of video at complex civil trials has exploded. We see them at opening, closing, during expert presentations, cross examination, everything is becoming a show and it’s becoming a production. Then that means the lawyers are becoming producers as well as attorneys.
[00:02:27] Max Cadmus: Now we’re really here to talk about what’s happening today, and in the future. But I wanna start this podcast with a throwback to 2009, and let me give you a little bit of an introduction before I show you some video. In 2009, Dwayne Michael Carter Jr., also known by his stage name, Lil Wayne, tried to enjoin documentary filmmaker Quincy Jones III and his production company from releasing a documentary about him.
[00:02:55] Max Cadmus: Now at first I understand Mr. Carter cooperated with the documentary, and he did things like he granted them access to his family albums and things like that. But then later on he became dissatisfied with his depiction. According to news reports he was in particular dissatisfied with depictions of him using drugs while he was on probation, and that actually complicated some criminal cases that he was also involved in at the time.
[00:03:20] Max Cadmus: And so he filed a lawsuit to try to enjoin the release of this case. In the course of that lawsuit, he was deposed. So this is video from 2012. I’m interested to see if you have any reactions to this deposition.
(Clip of Lil Wayne deposition)
[00:03:34] Victoria Flinn McCurdy: Well, with all due respect to Lil Wayne, it just didn’t really seem to me that he was doing himself any favors.
[00:03:40] Victoria Flinn McCurdy: He was kind of flippant despite the fact that he was the one initiating the lawsuit. The fact that he was giving evasive answers at best suggested that he didn’t really take it that seriously. And I think that impacts witness credibility down the road. And if that’s played in front of a jury, that’s gonna factor into which side they choose to believe.
[00:04:00] Max Cadmus: That is so interesting to hear because that is almost exactly what the judge said.
[00:04:06] Victoria Flinn McCurdy: I swear I didn’t know that.
[00:04:10] Max Cadmus: About Mr. Carter’s testimony the judge thought he acted very unreasonably. I believe he was actually in the room during that deposition. In fact, I believe when Mr. Carter refers to “this guy,” he’s not referring to his attorney.
[00:04:22] Max Cadmus: I think he might actually be referring to the judge. So the judge was very skeptical about this testimony, but this actually ended up getting played to the jury. And before I tell you about what happened there, I’d like to get Anthony’s reactions to it as well.
[00:04:37] Anthony Argiropoulos: So I have a different reaction to Weezy. My reaction is that he comes off genuine, that he is who he is and let’s think about who he is. He’s had more top 40 records than Elvis Presley. He is a superstar, and so I think that his conduct at the deposition is not putting on a show. I think he’s coming off, from my perspective, the way that someone might expect someone of that, of that magnitude, you know, a superstar as it were, to behave when being confronted with questions that might not make sense to him.
[00:05:11] Anthony Argiropoulos: Questions like, well, what would you do? Questions about what you remember versus what actually happened. I would bet that while the judge may have found Weezy’s answers to be impertinent or perhaps obstructionist, I would imagine that that might be viewed somewhat differently by a jury, and I would imagine that if you check the comments to the clips of his video that are available on YouTube, we would find a lot more positive comments than negative comments. So the question is, who’s your audience? Is it a judge? Is it a jury? Is it both? A lot goes into this.
[00:06:02] Max Cadmus: That’s very interesting, and let me give you a little bit more information about this before I get more, some further reactions. So when this case went to trial, originally, Mr. Carter intended to testify, or that it seems that he intended to testify live before a jury, but on the day that he was supposed to give his testimony, he was hospitalized with what has been variously described possibly as severe dehydration, possibly as seizures with migraines.
[00:06:27] Max Cadmus: Either way, he wasn’t present in the courtroom and his attorney made the decision, which was criticized at the time, of playing his deposition rather than presenting live testimony instead. And Mr. Carter actually lost the suit and lost a counterclaim and was ordered to pay almost 2.2 million to the documentary filmmaker’s production company for lost profits. So to Victoria’s point, it’s possible this did not play well with a jury, but there’s a further plot twist to this.
[00:06:51] Max Cadmus: This video was leaked to the media prior to trial. And was actually already viral when it was played for the jury. So I mean, doesn’t that suggest to you that this attorney wouldn’t have played it for the jury unless he felt strongly that this was going to reflect well on his client?
[00:07:09] Anthony Argiropoulos: I think it’s very difficult and frankly, often not productive to second guess decisions that lawyers make on the field.
[00:07:19] Anthony Argiropoulos: Sometimes these are instantaneous strategy or tactical decisions that need to be made, and no one has the gift of foresight any more than a quarterback who’s running a run/pass option has the foresight to see what would’ve worked versus what didn’t work at the time of execution. If the video was already out there, of course you have orders from judges not to look at social media and the like.
[00:07:46] Anthony Argiropoulos: Jurors are supposed to honor those instructions. We hope and rely as lawyers on jurors heeding those instructions. But if this blew up the way that it did, then I can understand why the lawyer made that call. But I’ll also add that the fact that Weezy maybe didn’t come off the way his lawyer or others would’ve liked, doesn’t mean that if he came off better he would’ve been right in the underlying lawsuit in a breach of contract claim. So those are my reactions to the plot twist, Max.
[00:08:18] Victoria Flinn McCurdy: So I’ll just add that sometimes there’s a client control piece to it as well, and maybe that was the best his attorney thought that he could do under questioning. Maybe he was concerned about Weezy’s performance live in trial. Those are all factors that we have to consider when we are making those decisions, as Anthony said, in-person, in trial.
[00:08:38] Victoria Flinn McCurdy: And it’s hard to Monday morning quarterback those decisions. But there are a lot of factors that play into the decision about whether to show a video of the deposition or to see if he can do better live in trial. And maybe this is the case in which that wasn’t really a possibility.
[00:08:55] Anthony Argiropoulos: Victoria makes a terrific point, which is one of the benefits of a ovideotape deposition is control.
[00:09:03] Anthony Argiropoulos: So by playing the videotape, the presenting attorney knows how bad it’s going to be. And he knows how good it’s going to be. In other circumstances, you know, a lawyer puts on a witness, she might not know, she might have an expectation of how her client is gonna do on the stand based on prior depositions and the like, but she’s just not going to know.
[00:09:27] Anthony Argiropoulos: So, putting on a deposition by videotape in this instance probably also gave that attorney a level of predictability. I know just how bad it could potentially look. I know just how good it could potentially look. That’s a great point, Victoria.
[00:09:43] Max Cadmus: So this was a case that started in 2009 and the deposition was taken in 2012.
[00:09:48] Max Cadmus: So it’s actually already more than a decade old. And when this was done, the use of deposition video at trial was still sort of an exception. And live testimony or testimony read-ins using the deposition transcript was the norm. And we’re here to talk about the new rules. And what’s happening right now.
[00:10:09] Max Cadmus: Anthony, what has changed between now and 2012 that makes video so much more important today? And in particular, video depositions.
[00:10:18] Anthony Argiropoulos: So everything’s changed. Look at your own life as it is today as opposed to how it were a decade ago. Right? Everything’s changed. You know, it goes without saying that Covid’s changed everything.
[00:10:30] Anthony Argiropoulos: It’s changed things like employee mobility, it’s changed things like the way that we view the world. Our future of jurors will… actually jurors today, right? People who are over the age of 18, recent high school graduates, college students, et cetera. Young adults are accustomed to spending more time on watching screens than participating in live events.
[00:10:55] Anthony Argiropoulos: I include school, the remote classroom, looking at videos on your phone, watching tv. I saw a funny meme the other day and it said something along the lines of, after spending all day looking at a screen at work, what do you say we watch the big screen at home while we watch the little screen at the same time?
[00:11:17] Anthony Argiropoulos: Right? So people are watching television while they have their tablet or their iPhone in front of them. They’re used to it. And one important factor that I know we’re gonna get into is not just the expectation of folks that they’re gonna watch videos. It’s not strange, it’s not unusual.
[00:11:38] Anthony Argiropoulos: It actually draws them in versus having them sit back in their chairs, has to do with the fact that as lawyers representing corporations, for instance, you might have a hard time getting a former executive to show up after that executive’s been terminated and after she’s relocated to Albuquerque, New Mexico, if you have a trial proceeding in New York City. So as an attorney who represents clients who have employees who may be coming and going, relocating across the country, lawyers need to look at videotape depositions as an opportunity to get their own witnesses on record in the case that those witnesses relocate, move, are otherwise available.
[00:12:18] Anthony Argiropoulos: So you’re actually putting on your case more often than not, as an attorney who’s defending your client’s deposition, which is not something that we did before.
[00:12:25] Max Cadmus: That’s so interesting because it’s been in the news a lot, these layoffs in various industries, particularly in tech. And during the pandemic, they were talking about a job change apocalypse. I guess this was not as big of an issue 10 years ago or 20 years ago as it is today.
[00:12:46] Anthony Argiropoulos: That’s right.
[00:12:47] Victoria Flinn McCurdy: Well, and if I could circle back to the topic that we were talking about a moment ago, and that being control. With the great resignation and varieties of job changes, it can be very difficult to sort of pull back and exert control over a former employee.
[00:13:07] Victoria Flinn McCurdy: Let’s say that that person has personal knowledge of whatever the allegations might be or whatever defense is, if you’re on the defense side, that you might assert those claims, and you can’t just rely on the person that filled that former employee’s shoes to testify either at a discovery deposition or trial.
[00:13:23] Victoria Flinn McCurdy: If somebody’s no longer an employee, it can be very difficult to control them. We see that a lot in our medical malpractice cases. A nurse changes hospitals and all of a sudden they really don’t want to take your call or sit for a deposition or provide their availability. So it can be hard to control that environment and that testimony and that witness if they’re no longer employed by your client.
[00:13:47] Max Cadmus: Even if a former employee is willing to sit for a deposition, you might prefer their testimony three years ago when they were still employed, right?
[00:13:58] Victoria Flinn McCurdy: Absolutely. Their incentives are different. Maybe their separation was not a pleasant event. Maybe it wasn’t their choice, maybe it was, but their motivations, their incentives for giving whatever kind of testimony they’re going to give are necessarily different in the former employee context versus when they were actually employed.
[00:14:19] Max Cadmus: And actually we’re talking about two things, aren’t we, when we talk about former and current employees? Because you might wanna depose your adversaries’ employees, and that has its own set of incentives, but you also have to worry about your client’s actual employees too. And you’re not the one deciding to depose your client’s employees.
[00:14:40] Max Cadmus: It’s your adversary. So it sort of strikes me that you’d wanna ask a whole different set of questions when you’re defending the deposition.
[00:14:49] Anthony Argiropoulos: Usually the conventional wisdom has always been that you produce your witness for a deposition. You …Instruct your witness to only answer the questions that are asked, and then kind of save your information, save your position for later. Don’t disclose the best parts of your case now. Save that for later. Don’t address potential weaknesses in your case. Save that for later. The problem that we’re talking about is that “later” can potentially not come if that employee is not available down the road.
[00:15:32] Anthony Argiropoulos: And so now you have considerations that you’ve never had before. Like perhaps I should spend some time or more time redirecting a witness. Perhaps I need my witnesses to be much better prepared to advocate for our position than simply answer the question that’s asked and then move on. These are things that you would do in the past from time to time, but now it’s more important than ever, I think, to make sure that when you have a corporate representative, an employee, et cetera, who is motivated now, who is invested now in your case, to maximize that.
[00:16:12] Anthony Argiropoulos: And if you’re not thinking about these issues, some of these cases can go on for half a decade. Some of them go on for longer. As we all know in these commercial cases, if you’re not thinking about that now, then you are gonna find yourself behind the eight ball because somebody else is.
[00:16:30] Anthony Argiropoulos: We are, and these are things that you really need to be cognizant of and really be on top of.
[00:16:36] Victoria Flinn McCurdy: In addition to that, attorneys will often ask, is this all you have to say about this topic? Do you have any other opinions? Do you remember anything else? And they try to pin the witness down in the deposition as to exactly what their trial testimony will be.
[00:16:50] Victoria Flinn McCurdy: And I think that presents a challenge if you’re following the conventional wisdom of only answering the questions that are asked and saving your story for a different phase of the litigation. It may come across as disingenuous or like you weren’t telling the full truth when you were being deposed.
[00:17:07] Victoria Flinn McCurdy: And so I think that also pushes attorneys in the direction of preparing witnesses to not only be responsive and honest when they’re deposed, but also advocating for their theory of the case. And certainly you don’t wanna give away all of your smoking guns and gotcha moments that you might like to save for trial. But laying that groundwork, what is my theory of the case? What is our theme? If you can weave that into every deposition it tells a consistent story that lends credibility to each of your witnesses.
[00:17:37] Max Cadmus: So a new rule of depositions is, you don’t know if this witness is going to be available in five or 10 years, when and if the case goes to trial, and you need to get your story out at the deposition, even if you’re defending it.
[00:17:52] Max Cadmus: I wanna go back to a point that was raised earlier about the prevalence of screens. It sounded like jurors and people in general, because jurors are just people, people trust what is on screens.
[00:18:13] Max Cadmus: I can see how that would be the case. College students and high school students during the pandemic were all accustomed to seeing their teachers or their professors on cameras and on video. People see their doctors on video now, but don’t you think something is lost if your expert who’s supposed to be truly credible and believable and have the aura of an expert, don’t you think something is lost if they’re just presented on a screen rather than live in front of a jury?
[00:18:43] Anthony Argiropoulos: I think it depends on the witness. Generally speaking, there are rules about how and when a videoed deposition can be played. Typically, in most jurisdictions, you can only use them if a witness is unavailable. Right? So it’s that situation where you have a former employee who moved to Albuquerque, New Mexico.
[00:19:05] Anthony Argiropoulos: She is outside of the jurisdiction of the court, cannot be compelled to appear. She’s considered an unavailable witness, and then you can play, per videotape deposition, which by the way is always gonna be subject to editing, objections that are on the record will be resolved by the court. So generally speaking, in those scenarios where the witness is unavailable or outside of one’s control, subject to the rules, you can play the video.
[00:19:33] Anthony Argiropoulos: You can also play videotape depositions or parts of them if it’s the testimony of what’s called a party opponent, right? So a plaintiff can play the video deposition or parts of it of a defendant and vice versa. That’s admissible. They’re called admissions of party opponents. But an expert is someone who’s gonna be within your control.
[00:19:55] Anthony Argiropoulos: That person would testify live and should testify live. And the same sorts of issues regarding the presence of a witness, whether it’s a videotape or live. All those come into effect as well. And that’s where, you know, you wanna make sure that your witness is gonna fit the expectations of a jury and hold, hold the jury’s attention, right?
[00:20:19] Anthony Argiropoulos: Someone is certainly going to fall asleep if they’re watching someone else droning on and on on a video screen, that might cause them to kind of lean back and shut their eyes, which as a presenting attorney, you do not want to see a juror do during your trial.
[00:20:35] Victoria Flinn McCurdy: I think it also depends on how critical that expert testimony is to the case. If it’s a case that’s truly a battle of the experts. It’s so much easier to say, no, I don’t believe you, to somebody if there’s a screen in between than if that person is sitting live in front of you. And so having an expert testify in person at trial where they can look each juror directly in the eye can be very compelling.
[00:21:00] Victoria Flinn McCurdy: Now, certainly there are some people who are perhaps more persuasive behind a screen than they are in person, and that’s a consideration to take into account as well. You don’t want someone’s physical presentation for whatever reason to take away from the substance of their testimony, but I think it’s a general rule, if that expert testimony is critical to your case, it’s best to have them live in front of jurors.
[00:21:22] Max Cadmus: Let’s talk a little bit about the nitty gritty of video presentation. If they’re gonna be, if they are more important now than they ever were and they’re only going to become more important, we should talk about what goes into a good video deposition. Victoria, what kinds of considerations are you thinking about when you go into a video deposition?
[00:21:44] Victoria Flinn McCurdy: Well, certainly you think about the witness’s appearance. If it’s my witness that’s being deposed, I want them to look professional. I want them to look like the jurors expect them to look. So if it’s a CEO, I want them to wear a suit and a tie and look the part, regardless of whether they’re a Mark Zuckerberg type and wear hoodies to the office.
[00:22:05] Victoria Flinn McCurdy: The jurors expect a certain look, and as an attorney, you’re doing your client a disservice if you don’t encourage them to deliver what the jurors want in that regard. This all plays into credibility, right? If I represent a surgeon who is sloppy in appearance, that kind of is contrary to what most people think of surgeons to be.
[00:22:26] Victoria Flinn McCurdy: You think of surgeons as being very precise people who you trust literally with your life. You don’t want them to look disheveled or unkempt or like they have poor hygiene. So you need to make sure that your witness is dressed appropriately for their role, and also factor into the juror’s expectations about what the witness should look like.
[00:22:46] Victoria Flinn McCurdy: Lighting and location is important too. We want our witnesses to feel comfortable. That’s why priority is given to the deponent’s schedule in their geographic location. You wanna be sure that whatever room you’re in is a comfortable temperature, that the lighting is great, that the witness doesn’t look dark, that there’s not a shadow over the witness’s face.
[00:23:07] Victoria Flinn McCurdy: All of that goes to the transparency of their testimony and their credibility in front of the jury. You need to factor in things like lunchtime or factor in traffic or noise that could play into the video recording. I actually had a deposition that was held at a public library for reasons that nobody cares about, and the room in which the deposition was held was adjacent to a little coffee shop in the library, and the room itself was very nice and open and airy and light and bright.
[00:23:38] Victoria Flinn McCurdy: But the walls were not soundproof and there was a constant stream of noise from folks who were getting coffee, and it really interfered with the testimony, not only for people who were sitting in the room listening to it, but also the video was definitely impacted by that because you had all of this outside noise.
[00:23:57] Victoria Flinn McCurdy: Certainly you can edit and try to reduce that as much as possible, but those are still all logistical considerations to take into account.
[00:24:07] Max Cadmus: I can see how the sounds of a coffee shop would detract from the solemnity of court testimony when you’re trying to play that to a jury and give it the weight that it deserves.
[00:24:18] Victoria Flinn McCurdy: Right. This witness in particular was talking about how she once underwent an exorcism. And you hear grinding coffee beans in the background. The juxtaposition was a little odd.
[00:24:32] Max Cadmus: When you’re at trial and you’re questioning a witness live, there are ways that attorneys use body language in strategic ways. How do you do that in a video deposition? Can you even do that? Is body language taken out of the equation or are there ways to use body language?
[00:24:49] Anthony Argiropoulos: So in a video deposition, generally the lawyer does not have any visibility at all. The visibility is all on the witness. The witness is the star.
[00:25:01] Anthony Argiropoulos: It’s the witness’s credibility. It’s the witness’s testimony that matters. That said, during the deposition, an attorney will use body language, presence, gravity, leaning in, standing up. Whatever that attorney is comfortable with, to get the most out of that witness. That might get you closer to what you want out of a reaction to a witness, but you’re not gonna be, you know, doing wild open gestures to a jury to make you part of the testimony.
[00:25:35] Anthony Argiropoulos: But what you need to be cognizant of, which I think many lawyers are not, is your voice, is your questions, is your modulation. Your tone. Sounding whiny, getting mixed up in silly little fights with witnesses that don’t matter. All of these things are gonna, could be, could get in front of a jury and are gonna impact the way that the jury use a witness and also use your client since you are your client’s avatar during that questioning.
[00:26:05] Anthony Argiropoulos: So I think it’s very important that when you’re going into a deposition that’s a videotape and you know that you want to use and will be using portions of that, you need to be ready to ask crisp, clean questions. That’s why when I heard, when we watched that Lil Wayne deposition transcript, asking a witness, do you remember this?
[00:26:33] Anthony Argiropoulos: Do you remember that? Well, what would you do? These are not crisp questions. These are questions that are annoying the witness and frankly would annoy me if I were a juror, right? The question is, did this occur? If the witness says, I don’t remember, well, then you can start circling around that witness and start marking off territory that shows that when this witness says he doesn’t remember, he’s not telling the truth, but memory doesn’t matter.
[00:26:59] Anthony Argiropoulos: What matters is what happened and what didn’t happen. So I think that while you, while you lose in a video presentation the potential theatrics that come along with an in-person presentation. If you think about your voice, you think about the crispness of your questions, you think about timing, you think about rhythm.
[00:27:20] Anthony Argiropoulos: When that video plays back, you and your client are going to look, you know, their absolute best while making your opponent look their absolute worst.
[00:27:31] Max Cadmus: Victoria, if you’re talking about video and the pandemic, then you have to talk about the elephant in the room, and that’s Zoom. How has Zoom changed video depositions? Loaded question.
[00:27:43] Victoria Flinn McCurdy: I remember at the very beginning of the pandemic, I just couldn’t wrap my brain around having depositions conducted by Zoom. It just seemed so impossible to me. But as I think we all learned during the pandemic, so much is possible when it’s necessary, and so Zoom depositions today are an option and they can be done very successfully.
[00:28:03] Victoria Flinn McCurdy: I think the decision between in-person depositions, in particular in person videotape depositions versus Zoom depositions is a case by case, witness by witness analysis. You may choose for cost reasons to depose certain witnesses by Zoom. Geography factors into it as well. So does the witness’s importance to the case.
[00:28:24] Victoria Flinn McCurdy: I personally, I would not want a critical witness to be deposed by Zoom, if at all possible, because again that in-person interaction is so important and could be such a tool regardless of which side of the V. you’re on. But for a witness who’s tangential, whether they appear by Zoom or in person is maybe negligible. In terms of those critical witnesses, there’s really no replacement for the psychological impact of being in close proximity physically with your adversary.
[00:28:51] Victoria Flinn McCurdy: As the questioning attorney, you can manipulate the witness’s stress response by doing things like standing up, as Anthony mentioned, or by what you wear, or how close you sit to the witness. Whether you put your elbows on the table in an aggressive stance, whether you lean back, whether you chit chat with them during breaks, whether you ask them about their family before the deposition starts.
[00:29:15] Victoria Flinn McCurdy: You can gauge your interaction with the witness by what you perceive in person physically, so much more so than you can on camera, on Zoom. On Zoom, we turn our screens off and we turn our microphones off when we take breaks. We don’t see those information gathering opportunities when the screen and the mic are off.
[00:29:33] Victoria Flinn McCurdy: Whereas in person, you can watch somebody ambulate, which might be important to your case if it’s a case involving bodily injury. You can see how they interact with their attorney. You can see whether the stress response you’re trying to elicit is actually taking effect during those breaks.
[00:29:57] Victoria Flinn McCurdy: So having that opportunity to perceive all of the things that happen outside of the testimony, that actually gets captured on the record, really in favor of deposing those critical witnesses in person. But like I said, Zoom is a great option too, especially for witnesses who maybe aren’t as important to the case.
[00:30:08] Anthony Argiropoulos: There’s one thing I would add to that, which is I don’t wanna give away our trade craft. But there are things that you can do in a Zoom deposition to really unnerve the witness and make them feel the pressure and fear that you want them to feel, right?
[00:30:24] Anthony Argiropoulos: You ask them first, is anyone in the room with you? They’re gonna say, “No.” Do you have any papers in front of you? They’re going to say, “No.” Then you say, would you do me a favor and stand up and use the camera on your device to show me the room that you’re in? And they freak out when you ask them to do that, whether there’s something in front of them or not.
[00:30:43] Anthony Argiropoulos: Invariably, there’s something around them and you say, I see that there’s a piece of paper on the table. What is that piece of paper? Would you show it to the camera? Okay, would you read it? Okay, are there any devices in front of you? Any tablets? Is your phone turned off?
[00:31:01] Anthony Argiropoulos: Can you show me your phone? Alright, is it off? Things like that really unnerve the witness. When they go off on a break, did you talk to anybody on the break? Did you, did your counsel call you? Did you call your counsel? Did you text anybody? Did anybody walk into the room? Did you take any notes? Those types of questions are very invasive, completely appropriate by the way.
[00:31:30] Anthony Argiropoulos: And I don’t see enough lawyers using those types of tactics and those types of questions to make sure that they’re not getting scammed in a deposition and really making these witnesses feel that this is not just logging into a meeting with some folks at work, but rather a scary, stress-inducing event. You can even ask your deponent if they spoke to their attorney, what they talked about.
[00:31:48] Anthony Argiropoulos: Because there’s no attorney-client privilege during a deposition. There can be no coaching. There can be no help. So if you have unscrupulous adversaries who are taking advantage of the process, there are things that you can do to keep everybody honest and to make sure that they appreciate, I like the word that Max used earlier, the solemnity and the seriousness of a deposition, even if it’s done informally and virtually by Zoom.
[00:32:15] Victoria Flinn McCurdy: That’s a good point that Anthony made about trying to counter the effects of impermissible coaching of a witness, because on Zoom depositions, typically the defending attorney isn’t on the screen and I actually last year had a deposition in which the deponent’s attorney and the plaintiff’s attorney got into a screaming shouting match.
[00:32:36] Victoria Flinn McCurdy: Because the plaintiff’s attorney was convinced that the deponent’s attorney was kicking the deponent under the table or otherwise signaling whether he was doing a good job or a bad job or what the content of his testimony should be. And it was almost childlike the back and forth that they engaged in about whether the defending attorney had to turn on his camera.
[00:32:57] Victoria Flinn McCurdy: He fully admitted that he had his own laptop. He had the ability to turn it on, but he just said no, I don’t have to, you can’t make me. And if you really wanna stop the deposition and call the judge, go for it. And of course, the plaintiff’s attorney didn’t, but it raised an interesting question about whether and how much we should be able to control the room when we’re deposing somebody by Zoom.
[00:33:21] Anthony Argiropoulos: That lawyer should have called the judge. That lawyer should have, should have. There’s no reason not to. That lawyer should have called the judge. And if the judge was not reachable, what that lawyer should have done is said, look, I’m concerned that there’s a level of inappropriate conduct going on that is threatening the integrity of this proceeding.
[00:33:41] Anthony Argiropoulos: If counsel will turn on her screen or his screen so that we have the comfort that that’s not going on, we can proceed. If not, then we’re gonna take it up with the judge and we’ll come back another day. And I’m certain that the judge is going to say, yeah, counsel, just turn your screen on. It’s a Zoom.
[00:34:00] Anthony Argiropoulos: What’s the big deal? If you were in a room together, you would all be looking each other eye to eye. The Zoom deposition is no different. So I, look, every engagement that we have with an adversary, with the witness, it’s all a negotiation. It’s all combat. And we shouldn’t forget or minimize that we have these options and our job is to… our job’s to win.
[00:34:25] Anthony Argiropoulos: And if we don’t exercise every option in our arsenal to get there, we’re doing our clients and we’re doing ourselves a huge disservice.
[00:34:35] Victoria Flinn McCurdy: I completely agree. If it’s important enough to bring up and have an argument about on the record, it’s important enough to call the judge about. You don’t lose anything.
[00:34:40] Anthony Argiropoulos: For sure.
[00:34:43] Max Cadmus: So that’s fascinating. Thank you. I’ll ask this concluding question. What’s next with video depositions and general video use at trial?
[00:34:51] Anthony Argiropoulos: From my perspective as a trial attorney, we’re doing nothing different than what we’ve done in the past. Our job is to keep a jury’s attention. Our job is to advocate for our client.
[00:35:04] Anthony Argiropoulos: Our job is to tell a story that is compelling, that makes sense, and that leads a jury to the conclusion that we think is right. And is in the best interest of our client. Now we simply have better tools that can help us tell that story, whether it’s video, whether it’s demonstrative exhibits, whether it’s live testimony, whatever, you know, whatever the case is.
[00:35:26] Anthony Argiropoulos: We now have more tools to do that, and we have to be cognizant early on that we’re telling a jury a story and we have to use these tools to maximize the impact of the story. That’s all. It’s like going from a play to film. That’s basically what we’re looking at as lawyers going forward.
[00:35:47] Victoria Flinn McCurdy: I agree with Anthony and I think we have to take into account the technology and how rapidly it’s changing and as attorneys we need to keep up.
[00:35:55] Victoria Flinn McCurdy: There’s nothing worse than a technology fail. It’s so cringe worthy. It makes jurors and judges and the attorneys and the witnesses and the parties uncomfortable when technology fails. Now, of course, we can’t prevent every snafu that arises, but we have to make sure that we’re conversant in the most up-to-date technology, that we know what the court’s technology is and isn’t capable of.
[00:36:21] Victoria Flinn McCurdy: And we have to keep in mind that as consumers of video content, our expectations are gonna change over time and people expect more of a show now than they did 10 years ago. It doesn’t mean that we’re necessarily doing things completely differently, but everything is scripted, even reality TV these days. So we have to keep that in mind, particularly when we’re preparing witnesses.
[00:36:43] Victoria Flinn McCurdy: Whereas 10 years ago you might get a random notice for a video deposition and most of your witnesses were taken just by stenographic means, now almost all witnesses are videotaped during their depositions, and so your witness has to be mindful of the cadence of their voice and their physical appearance because it might end up being played in front of a jury who expects a full-on production. So we have to keep that in mind, and I think we have to keep evolving and stay current.
[00:37:12] Max Cadmus: Thank you, Victoria. Thank you, Anthony. If you like the information we’re sharing today, please subscribe to the show. Speaking of Litigation is available on YouTube and wherever you get your podcasts.
About the Speaking of Litigation Podcast
No business likes litigation. Lawsuits and trials can be stressful, unpredictable, and often confounding—even for battle-scarred business leaders. But they’re something almost every business must confront. The Speaking of Litigation podcast pulls back the curtain for an inside look at the various stages of litigation and the key strategic issues businesses face along the way. Knowledge is power, and this show empowers executives and in-house counsel to make better decisions before, during, and after disputes. Subscribe to Speaking of Litigation for a steady flow of practical, thought-provoking insights about litigation from Epstein Becker Green litigators.
Trouble listening to this podcast? Please contact us at firstname.lastname@example.org and mention whether you were at home or working within a corporate network. We’d also love to hear your suggestions for future episode topics.
Subscribe to the Podcast
Never miss an episode! Subscribe to Speaking of Litigation on your preferred platform – Amazon Music / Audible, Apple Podcasts, Audacy, Deezer, Google Podcasts, iHeartRadio, Overcast, Pandora, PlayerFM, Spotify, Vimeo, YouTube.
Spread the Word
Would your colleagues, professional network, or friends benefit from Speaking of Litigation? Please share each episode on LinkedIn, Facebook, YouTube, Instagram, and Twitter and subscribe for email notifications.