Videotape Depositions: Take One

California law allows an adverse party to use a deposition of a party for any purpose during trial.  See, Code of Civ. Proc. Sec. 2025.620(b) (pdf.).  If you videotape your opponent's deposition, this means that you can select and play deposition clips for the jury to watch during your: (1) opening statement; (2) turn to introduce evidence without any opportunity for your opponent to respond; and closing argument.  Imagine:  jurors get to hear and see your opponent at his or her worst, as if they were watching an entertaining clip, which most of them do frequently.

Without videotape of your opponent's deposition, you have nothing but a cold, lifeless transcript to read the jurors to sleep.  The videotape not only gives jurors something to hear, but also something to see.  For example, where a phrase like, "I don't recall," looks boring and standard on a page, video-recorded testimony of the same phrase could be very damaging to your opponent.  A video could show your opponent immediately and without hesitation responding aggressively to an important question with, "I don't recall," as if on cue.  Or, the video could record your opponent deliberating at length and then looking at his attorney, all the while fidgeting in his seat, before apologetically responding, "I don't recall."  Without videotape, all of this non-verbal language is lost forever because the transcript is nothing but boring words on a page - one more among many boring pages and documents shown to jurors during trials.

In his book, , , supports a claim by the psychologist that a person's face while speaking can reveal whether he is lying.  Gladwell uses several examples to demonstrate, that despite our best efforts to suppress involuntary facial responses, our facial expressions often give us away.  One example, occurred during a press conference given by , who had not yet been revealed as a Soviet spy.  Twice after being asked serious questions about whether he had committed treason, he smirked like "the cat who ate the canary." 

According to Gladwell, we are face readers from the day we are born.  As babies we learn to read our parents' faces for acceptance, unhappiness and fear.  By adulthood, we instinctively read faces for clues. 

In addition to Gladwell's book, Blink, is airing a new television series () this month based on a specialist who can read clues in the human face, body and voice to expose the truth.

A videotaped deposition allows the jury to read your opponent's face -- during a deposition that he never thought the jury would see.  When reviewing your opponent's video, you must concentrate on your opponent's face for "tell-tale" signs.  If you catch your opponent smirking, glaring, worried, hesitating, confused, etc., it would be a mistake not to share it with the jury.


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