What Attorneys Should Know About Videographers: Part 2: Videographers Role and Preparing Your Witness

Once the deposition has been noticed to be conducted with a videographer the next step is to prepare your witness. If your deponent is not familiar with (and not previously been deposed) the thought of being questioned can be intimidating. Now, add the pressure of knowing that they are being videotaped and your witness’s stress level has potentially been elevated. Prepping a witness for this added complexity is a must for attorneys and it is a process that needs to start well in advance of the deposition date.  The videographer is there to visually record what the court reporter is typographically recording for use of one or both in trial. The videographer will not prepare your witness but may need to approach them to place the microphone.

Before the deposition: Make your witness feel at ease by walking them through the deposition process, conduct a mock deposition in which you ask and guide them through your questions and potential questions from the other attorneys.  It can be helpful to make the time to discuss objections and what they should do if you or another attorney makes an objection during the testimony. Also, let the witness know ahead of time that an objection by opposing counsel does not mean that their answer was wrong, hurt the case, or is worth getting upset about. Discuss the court reporter and videographer’s role at the deposition.

You will also need to choose the location for the deposition. The videographer will need electricity available, and room large enough to set up a backdrop, even if there is a neutral wall most videographers still will prefer to use their backdrop. Choose a setting for the deposition that will not be distracting to those present or to a potential jury watching the video in trial. You want a location that the witness feels comfortable and can remain calm, depositions are normal for attorneys but not most witnesses have previous experience being deposed.

Appearance of the witness also needs to be discussed prior to deposition day. It is important that the witness wear clothing that they feel comfortable in but that also makes a good first impression and is not districting to them or potential viewers. One option for your witness is that they dress as if they were going to court. It can also be beneficial to the credibility of your witness if they dress as they do in their career, should that profession be viewed by most as reputable, such as a doctor wearing a lab coat or police officer or fireman wearing their uniform. Be mindful that any distraction in the video can be a distraction to the jury. Speak to your witness about what is appropriate clothing for a traditional photo shoot and follow those same guidelines (i.e. No loud stripes or patterns, nothing overly tight or revealing, no shiny/ large jewelry). Also, remember that the videographer will place a collar or lapel microphone on the witness and floppy collars, necklaces, or a scarf may interfere or cause unnecessary noise on the recording.

Try to limit distractions by not placing food, drink, pens, notepads, or other items in front of the camera. You do not want a fidgety witness being captured on camera for use in front of a jury.

Preceding the deposition remind your witness to address the camera as if they were looking at a jury, do not address you or another questioning attorney. Also remind your witness to speak slowly, audibly, clearly, confidently and to avoid non-verbal answers. If your witness has knowledge that is technical or difficult for a lay person to understand walk them through explaining themselves ahead of time.

During the deposition:

Remind your witness to sit up straight, as high in the chair as necessary for good posture, and avoid slouching, twirling, rocking, fidgeting, chewing gum, and leaning out of the camera view.

As the attorney at the deposition you too may have your every sound picked up by a microphone. Try to avoid speaking too quickly, answering with non-verbals, gesturing to or answering for the witness, cursing under your breath, playing with the microphone, clicking your ball-point pen or crumpling paper. Remain calm and keep your witness calm!

After the deposition:

Review the clips you are considering for use in trial to confirm clarity, appropriateness for your case and to see how the jury may perceive the witness. Let the videographer know what format you need and when you need to the video or clips. Also let the court reporter and videographer know if you need the testimony synched to the video clips for use in trial.