By Will Owens and Davis Popper, Conley Griggs Partin LLP
The Law at Twenty Four Frames per Second
There are differing schools of thoughts among most trial lawyers regarding videotaped depositions. Some find it necessary to videotape every single deposition that he/she personally takes. The rationale being that every deposition taken is with the clear purpose that it will eventually be played in front of a jury. Others find it unnecessary to incur the costs of scheduling a videographer for every single deposition. Whichever school of thought you (or the law firm you work for) abide by, this article is intended as a refresher course (or primer course for newer lawyers) on the key points to keep in mind when walking into your next videotaped deposition—or when deciding whether to videotape your next deposition at all.
Our first section will focus on recognizing whether a deposition should be videotaped, with an eye towards when Georgia law allows depositions to be used at trial. Our next section will discuss certain types of witnesses whose depositions should be videotaped, as well how to prepare and execute those depositions. Lastly, we will provide a few general practice points and reminders about professional demeanor, appearance, and those things that seem like commonsense—but that we can all use a reminder on every once in a while.
Should I Bring a Camera?
When deciding whether to videotape a deposition in a case pending in Georgia, it is essential to keep in mind O.C.G.A. § 9-11-32, which provides the circumstances under which depositions may be used at trial. If the Court will not allow the use of the deposition at trial, it may not be worth the cost of a video deposition. If, however, your witness falls within the purview of this statute, you should always consider videotaping the deposition. There is no better way to lose a jury’s attention than by having to read in the deposition testimony from the stand at trial. And if that testimony happens to be of a key witness, then you could really be in trouble.
First, O.C.G.A. § 9-11-32(a)(2) provides that the deposition of a party “may be used by an adverse party for any purpose.” This section specifically includes 30(b)(6) representatives, which are discussed in further detail below. Playing a defendant’s video deposition can be an effective tool in your case-in-chief because oftentimes, there will be no momentum-stopping direct examination by defense counsel in the deposition.
Second, O.C.G.A. § 9-11-32(a)(3) provides six categories of “unavailable” witnesses, whose depositions may be used at trial, and we will highlight several of these categories:
Out of the County: In Georgia, a witness residing in a county other than where the case is pending is considered unavailable. If, for example, you have a case pending outside the county where an accident occurred, you may want to consider videotaping all eyewitness depositions, particularly those who are beneficial to your case. Those who subscribe to the “videotape everything” school of thought point to this subsection, as witnesses may move counties or states during the course of litigation without our knowing. Keep in mind that the federal rules are slightly different on this point, with the definition of an “unavailable” being more than 100 miles from the courthouse, as opposed to out of the county. See Federal Rule of Civil Procedure 32(a)(4)(B).
Death: Not surprisingly, Georgia law provides that a party may use the deposition of a witness who has passed away. As with the witness’s physical location, this category provides good reason to videotape all important depositions, but it may be of particular importance in nursing home cases or other cases involving the elderly or catastrophically injured.
Age, Illness, Infirmity, or Imprisonment: Subsection (a)(3)(C) provides that a party may use the deposition if the “witness is unable to attend or testify because of age, illness, infirmity, or imprisonment.” This category is self-explanatory, but it is worth noting that all depositions of inmates should be videotaped.
Busy Schedules: Another important category of unavailability is Subsection (a)(3)(E), which allows the use of depositions if the court finds “that because of the nature of the business or occupation of the witness it is not possible to secure his personal attendance without manifest inconvenience to the public or third persons.” This showing can often be made with medical professionals, given the nature of their schedules. The burden will be on you to show that the deposition can be used at trial, so remember to ask questions establishing unavailability at the deposition.
In case you are unable to make a showing of unavailability for a video deposition that you want to play to the jury, the statute does provide a catch-all, allowing the use of depositions “in the discretion of the trial judge.” O.C.G.A. § 9-11-32(a)(4). It seems though that judges are not inclined to allow the use of depositions without some requisite showing of unavailability, undue hardship to the witness, or consent of opposing counsel.
The Usual Suspects
Below are the types of witnesses that you should always consider videotaping the depositions for use at trial.
30(b)(6) Corporate Representatives: Without sounding too obvious for the lawyers that have been around the block enough times, it is imperative that any deposition taken of a corporate representative pursuant to O.C.G.A. § 9-11-30(b)(6) be videotaped. One reason, as mentioned above, O.C.G.A § 9-11-32(a)(2) allows you to use these depositions of an opposing party as a matter of course. A more important reason is that you’d rather have his/her knee-jerk reaction to your questioning on video to play for the jury, rather than a rehearsed response, even if opposing counsel agrees to call that witness live at trial. In other words, it may be easier to catch less-prepared representatives off guard during the deposition than at trial, when they are more prepared. Bring. Your. Camera.
As much as taking a direct or cross-examination of a witness at trial, you should spend that same amount preparing for the videotaped deposition of a 30(b)(6) corporate representative. That’s because it will be played at trial, so treat it like trial. Obviously, you won’t be able to script every second of a deposition because sometimes you won’t have much of an idea what to expect in response. However, the first 45-50 minutes of your deposition are key. This is the part you will want to cut and play directly for the jury. So, you will need to have your key documents, key talking points, and biggest bombshell questions ready for that portion of the deposition. After a break, you can come back and dig around for any loose ends and chase down any uncertainties that still remain in discovery.
When taking the opening segment of your corporate representative deposition, there are three types of questions to ask. First, leading questions that you already know the answer to, and that you know the witness cannot conceivably respond in the negative to. This will make for an even flow at the beginning of the deposition and show the witness (and jury) that you’ve done your research. Second, leading questions that you anticipate the witness will be dodgy about, but that you have a document with verifiable proof to use to cross them on. Finally, and most importantly, leading borderline over-the-top questions where you don’t care what the response is. An example might be along the lines of: “But your company knows that these products explode and burn young children during foreseeable use, don’t they?” It doesn’t really matter how the witness responds at that point; the jury has heard everything you want them to hear.
Treating Physicians: More often than not, the treating physician you’ll want to depose will not be located in the same county as the trial court. In those situations, you’ll be able to utilize O.C.G.A. § 9-11-32(a)(3)(B) to play a treating physician’s videotaped deposition at trial. However, even in situations where the treating physician is located in the same county as the trial court, you can still utilize O.C.G.A. § 9-11-32(a)(3)(E) to play the treating physician’s videotaped deposition at trial. Specifically, the deposition of a witness may be used by any party for any purpose if the court finds that, “because of the nature of the business or occupation of the witness it is not possible to secure [the treating physician’s] personal attendance without manifest inconvenience to the public or third persons.” Again … Bring. Your. Camera.
In preparing for a videotaped deposition of a treating physician, a thorough review of his or her medical records pertaining to your client’s treatment is obviously key. A slightly less obvious preparation point is to get some face-to-face time with the physician prior to the deposition, whenever possible. Historically, physicians are not big fans of trial lawyers. So, even in non-malpractice cases where you are not suing the physician, but rather deposing them for purposes such as injury causation or damages, it is important to establish some rapport and remind the physician that you are on his/her side. This is also important, wherever possible, in order to get a feel for what he/she intends to testify so that you aren’t blindsided by anything that may have been omitted from the medical records.
Finally, aside from general pointers about treating the deposition like you are live at trial, it is also a good reminder to properly qualify the treating physician prior to getting into his or her medical opinions. Treating physicians are not typically “retained or specially employed” in anticipation of litigation or preparation for trial pursuant to O.C.G.A. § 9-11-26(b)(4) governing expert witness testimony. However, such physicians and healthcare professionals will often be called upon to testify regarding injuries, damages, prognoses, medical treatment and/or injury causation, which issues will likely include some opinion testimony of an expert nature based upon his or her medical training, education and experience. So, if they aren’t properly qualified on camera, then key portions of his/her testimony may be excluded at trial.
Investigating Officers, Law Enforcement, EMTs, Paramedics, Etc.: Witnesses who respond to the scene of an accident are often essential to a personal injury case and “unavailable” for the reasons discussed above. Investigating officers can provide key factual testimony that assists reconstruction and injury causation experts, and oftentimes, this unbiased and objective (i.e., unpaid) testimony can be particularly persuasive in front of a jury. Similarly, paramedics and first responders can provide important damages testimony, particularly in wrongful death cases, where pain and suffering is at issue, or key factual testimony that may assist biomechanics or medical causation experts. Everybody say it together now … Bring. Your. Camera. ●
ABOUT THE AUTHORS:
Will Owens is a Partner with the Atlanta-based firm Conley Griggs Partin. His practice is focused in the areas of product liability, personal injury, and business litigation. A native of Memphis, Tennessee, Will graduated from Washington and Lee University with a Bachelor of Arts in Politics and received his Juris Doctor, cum laude, from the University of Georgia. Will can be reached at firstname.lastname@example.org.
Davis Popper is an Associate Attorney at Conley Griggs Partin LLP where his practice focuses on complex civil litigation, including business litigation, product liability, class action/MDL as well as catastrophic personal injury and wrongful death disputes. A Double Dawg, Davis received both his Bachelor’s and his JD from the University of Georgia. Davis is a current member of the GTLA LEAD Program, and he can be reached at email@example.com.
CLIP & SAVE
Defending a Video Deposition: Defense counsel has noticed your client’s deposition to be videotaped. Here, you need to prepare your client as if he or she is testifying at trial because, in all likelihood, this deposition will be played to the jury. Appearance and demeanor are key. If you are particularly concerned with how the client will present, stage a mock video deposition and show the client how he or she appears on the video.
Exhibits: If you plan to play a video at trial, it is important to consider how you would like the exhibits to be presented during the deposition. It can be confusing for the jury to watch a deponent talk about an important document, without actually seeing the document. At the very least, have the deponent hold up the document to the camera and ask the videographer to zoom in for a closeup. If you engage the help of a legal technology service at trial, your assistant can likely pull up the exhibit within the video screen when the document is identified.
Objections: As with trial, you probably don’t want to object to every question. Even if the deposition is going to be used at trial, it is often easier to reserve non-form objections and take them up with the court once deposition designations are submitted. If you are asking the questions, note the opposing attorney’s objection and re-ask your question so that there is no interruption between the question and answer on the video for trial.
Microphones: These can be tricky. You want to clip the microphone to a sturdy lapel and not breathe too heavily. And don’t forget to take off the microphone during your restroom break … you might just drag the entire audio-visual system out with you.