1. The witness will be unavailable during trial. This is by far the most common reason to videotape a deposition. Whether the witness is going to be out of the country, is an expert busy with other commitments, or is in poor health, the impact of their testimony will be much greater if the jury can watch a videotape rather than listen to a reading of the transcript. Being able to see and hear how the testimony is presented gives jurors a lot more information than just the written word. Demeanor, speech patterns, physical appearance, and the flow of questions and answers all affect credibility and increase the likelihood that the jury will retain what they heard.
The downside, of course, is that you must live with the testimony as recorded. If something new comes up during trial, you will not be able to expand your questions to include new material.
It is also important to be mindful that attention spans are diminishing every day. Yes, a video is more compelling than testimony read aloud from a transcript, but a videotaped deposition can quickly put a jury to sleep if it is too long. Time spent editing is well worth it. Present the testimony that matters.
2. Impeachment of a witness. You can impeach a witness with a transcript, but a video clip is much more powerful. If you sync the transcript with the video, it is easy to locate relevant testimony quickly and create a video clip that can be used immediately.
3. The calming effect on all participants in a deposition. If you are involved in a highly contentious case, recording the deposition may have a calming effect on everyone in the room. People are less likely to act out if their words and actions can be replayed down the road. On occasion we have been asked to run two video cameras, one focused on the witness and one focused on opposing counsel, for this very reason — and it works! Generally, there will be fewer objections and other interruptions if a deposition is videotaped.
4. Trial preparation. If you have people on your team who aren’t able to attend the deposition, reviewing a videotape of the testimony will be more productive than just reviewing the transcript. Send it to experts, show it to paralegals and co-counsel. They will have a better understanding of the testimony and how it will be perceived by the jury.
If you plan to work with a mock jury, have them react to videotaped testimony rather than someone acting the part and reading from a transcript. They can evaluate the witness’s body language and temperament. In some cases, you may decide reading from the transcript is preferable to showing the videotape because of odd mannerisms or a difficult speech pattern.
5. Get more from the witness. Sometimes depositions are held in relatively casual settings which can make a witness feel like the deposition is just a glorified interview. Having the deposition videotaped can create a greater sense of importance and impress the deponent with the seriousness of the occasion. This may result in more complete and candid answers.