One of my favorite lawyering stories came from a retired partner at my old firm. He was representing a client in a contentious litigation and he was set to depose the other side’s key witness. They were being pretty shady, as the kids say. The partner noticed that whenever he asked a question, the deponent would take a long time to respond. I’m talking excessive amounts of time here. The deponent would just say nothing for ten plus minutes straight. Spend an absurd amount of time pretending to review an exhibit. Just trying to run out the clock.
At the time, there was no obvious way to keep the deponent honest. This was way back when there were no video depositions. This was even before transcripts had timestamps. Even if the deponent took half an hour to respond, it would look like any old Q&A pair: Question from the attorney, answer from the deponent. No indication of any shenanigans. In theory, you could call off the deposition and involve the court, but who knows how that will play out. The other side knew all of this, of course, and fully expected to pull it off. Well, the partner had other ideas.
As usual, the partner was wearing his favorite watch. He took it off and placed it face up on the table next to his papers. He asked his next question and then he started timing the deponent. When the deponent finally got around to responding, the partner would say: “Let the record show that the deponent took 10 minutes to respond to my question.” The witness delayed, the partner put the delay on the record. He was effectively timestamping on the record. He did this with every question after that. Eventually, the other side realized they got got. They stopped with the games and the witness started answering questions.
This illustrates the importance of video depositions. No witness could get away with these games on camera. It would look incredibly bad and it’s the last thing the lawyers representing them would want to deal with going into trial. In fact, it's a great way to put yourself in a really bad settlement position.
Video depositions add a new dimension to fact discovery. Effective and ineffective witnesses can make or break a trial. Make sure you are accounting for this early on, assessing your own witnesses, as well as those for the other side. Load videos to your deposition management software for review alongside your transcripts and exhibits. Include the witness assessment in the transcript summary. Also, you can tag portions of testimony that correspond to video clips that are particularly effective or particularly damaging. This should inform, at least in part, your designation process and trial preparation.