BY RICH DOLDERIf a picture is worth a thousand words, 29 frames per second can convey entire novels of fact, emotion, truth, and lies. That is why I videotape almost every deposition I take.
Most talk of the benefits of videotaped depositions turns on their use at trial. Everyone understands that reading a two-hour deposition into the record will, at best, bore the jury and, at worst, cause them to miss important content. Everyone understands that the simplest impeachment packs more of a punch when the jury sees the witness’s mouth moving.
It is high time, however, to consider the benefit of videotaped depositions for the 95 percent of cases that resolve prior to trial. I often hear attorneys say that videotaping a deposition is not worth the price, either because the potential value of the case is low or because the case is likely to settle. In my experience, videotaping depositions increases the value of a case and makes favorable settlement easier.
As to settlement value, videotaped snippets in mediation presentations can have the same impact on a corporate representative or handling adjuster as on a jury. The decision maker for the defense at mediation is unlikely to have seen any witnesses testify. The decision maker’s understanding of the case is built through cold, written reports from an advocate for the defense. An advocate for the plaintiff will never get past that bias with additional recitation of the cold testimony. Videotaped testimony can break through confirmation bias.
For example, most of my practice involves an insurer’s negligent or bad faith failure to settle.1 The adjuster who evaluated the claim and rejected an opportunity to settle is a key witness. I could never convince an insurance executive at mediation that the adjuster looks like a liar by reading testimony or explaining how the witness appeared to me. However, 120 seconds of well-chosen video can show the truth and turn the tide.
Even if the resulting videotape is never used, the practice of videotaping depositions conveys a sense of resolve and confidence. “We will devote resources to this case. We are not afraid to spend our time and money. This case is important.” The other side will never consider your case to be more important or valuable than you do yourself.
Make your case important. Videotape every deposition. ●
Richard E. Dolder is a partner who joined Slappey & Sadd to expand the firm’s work on insurance coverage and insurance bad faith. Rich represents individuals and businesses who are improperly denied coverage or treated unfairly by their insurance companies. He currently serves on the GTLA Verdict Editorial Board.
1 “An insurance company may be liable for damages to its insured for failing to settle the claim of an injured person where the insurer is guilty of negligence, fraud, or bad faith in failing to compromise the claim.” S. Gen. Ins. Co. v. Holt, 262 Ga. 267, 268, 416 S.E.2d 274, 276 (1992).