Litigation Is Starting to Resemble Reality TV

Esquire Deposition Solutions, LLC

Esquire Deposition Solutions, LLC

Ever since the ABA advanced the principle that “competent representation” includes the duty of technology competence, lawyers have developed an understanding of the many ways in which technology affects law practice and the interests of clients.

Certainly, vigilance on cybersecurity matters falls within a modern lawyer’s expected professional competence. As does taking care with the use of remote devices, practicing ethically while working from home or other out-of-office locales, excelling at client advocacy during remote depositions, wisely choosing third-party vendors that will have access to client confidential information, adopting artificial intelligence technologies for use in delivering legal services, and keeping abreast of advances in technology and in the law as a result of technological change.

How about … television director? Does a litigator’s expected range of professional competencies now include having the technological expertise to put on a good television show for the judge or jury?

It just might.

“People expect more of a show now than they did 10 years ago,”  Victoria Flinn McCurdy, a health-care industry litigator in Epstein Becker & Green’s Columbus, Ohio, offices. “It doesn’t mean that we’re necessarily doing things completely differently, but everything is scripted, even reality television these days. So, we have to keep that in mind, particularly when we’re preparing witnesses.”

McCurdy discussed how litigators are changing their deposition strategies to account for evolving juror attitudes about videotaped evidence during Epstein Becker’s Speaking of Litigation podcast series, a venture the firm launched earlier this year.

Maximilian Cadmus, a litigation associate in Epstein Becker’s Princeton, N.J., offices, shared a remark he’d heard from a trial judge that jurors are coming to expect trials to mimic Netflix shows: well-produced and acted, everyone in costume, everyone playing their expected roles.

“The use of video at complex civil trials has exploded,” Cadmus said. “We see them at opening, closing, during expert presentations, cross-examination, everything is becoming a show, and it’s becoming a production. That means the lawyers are becoming producers as well as attorneys.”

A New Way to Offer Testimony

Ten years ago, live testimony and testimony read-ins from deposition transcripts were the norm in courtrooms across the country. Today, almost all witnesses are videotaped during their deposition, and those videos are increasingly finding their way into courtrooms.

Society’s increasing use of video to deliver not only entertainment but also critical information (e.g., remote health care and distance learning education) is testing long-settled expectations within the legal professional about how to put on a case. Although the view that “live is always better” is still prevalent among experienced litigators, today, more than ever, litigators are willing to consider that, for some witnesses, in some cases, a well-produced video-recorded deposition might be the correct way to offer testimony at trial.

Let’s take a look at several deposition practice pointers that litigators may want to consider when conducting their next video-recorded deposition:

  • Deposition witnesses must look and act the part. Jurors will be confused if witnesses aren’t dressed as expected. A business executive should wear a suit. A surgeon should dress like a doctor. A witness’s failure to meet juror expectations regarding appearance will undermine that witness’s credibility.

“Jurors expect a certain look, and as an attorney, you’re doing your client a disservice if you don’t encourage them to deliver what the jurors want in that regard,” McCurdy said.

  • Witnesses are becoming more “unavailable.” In a highly mobile society, the odds are increasing that a key employee witness will leave employment and move outside the jurisdiction. Not only is this witness unavailable at trial, but he or she – being a former employee – is less likely to share identical interests with the former employer.

“Lawyers need to look at videotape depositions as an opportunity to get their own witnesses on record in the case that those witnesses relocate, move, are otherwise available,” Anthony Argiropoulos, a commercial litigator in Epstein Becker’s Princeton, N.J., offices, remarked.

Argiropoulos added that the possibility a witness will be unavailable for live testimony at trial challenges the conventional wisdom of saving for trial the most compelling parts of the witness’s testimony. It’s possible, he said, that “later” will never come. As a result, both counsel and the witness should cover all the necessary bases during the deposition.

“Now it’s more important than ever to make sure that when you have a corporate representative, an employee, who is motivated now, who is invested now in your case, to maximize that,” Argiropoulos said.

  • Jurors expect compelling television. The lawyer plays the role of director during testimony presented through video. Even though the witness is alone on-screen, the lawyer can get a better performance by using body language and presence. Lean in toward the witness or stand up during questioning. Modulate tone of voice during questioning. Lawyers should do whatever they are comfortable with in order to get the “performance” they want out of the witness.
  • “Quiet on the set!” Off-camera noises create two significant problems. First, they impair the court reporter’s ability to create an accurate record of the proceeding. Second, off-camera audio distracts the jury’s attention from the witness’s testimony. Jurors are used to high-television production. They’ll draw adverse inferences from unprofessional, noisy scenes.
  • Witnesses should be made comfortable. Choose a location that puts the deposition witness at ease. Schedule the deposition close to their residence or office so travel time is not burdensome. Make sure that the room is at a comfortable temperature and the lighting in the room is flattering to the witness’s appearance.
  • … except when witnesses should be made uncomfortable. Argiropoulos said that it is entirely appropriate to make a deposition witness feel uncomfortable, in the right situation. An opposing party’s witness should feel pressure and perhaps a bit of fear.

He suggested asking opposing witnesses pointed questions during remote depositions.

Do you have any papers in front of you? What is that piece of paper? Would you show it to the camera? Would you read it? Are there any devices in front of you? Any tablets? Is your phone turned off? Would you do me a favor and stand up and use the camera on your device to show me the room that you’re in?

Did you talk to anybody on the break? Did your counsel call you? Did you call your counsel? Did you text anybody? Did anybody walk into the room? Did you take any notes?

“Those types of questions are very invasive, and completely appropriate by the way,” Argiropoulos said.

  • Don’t bore the audience. When testimony is presented through a video screen, there’s an increased risk that jurors will lose interest. It’s important for the questioning attorney to ask crisp and clean questions. Get right to the point.

“Someone is certainly going to fall asleep if they’re watching someone else droning on and on on a video screen,” Argiropoulos remarked. “As a presenting attorney, you do not want to see a juror do that during your trial.”

Litigators Remain Storytellers

Technology is changing rapidly, that’s no doubt true. But for all of the new advocacy tools that litigators have at their disposal today, the core mission of trial attorneys has not changed at all. Their job in the courtroom remains to convince a judge or jury that their client’s position is the correct one.

“We’re doing nothing different than what we’ve done in the past,” Argiropoulos said. “Our job is to tell a story that is compelling, that makes sense, and that leads a jury to the conclusion that we think is right. And is in the best interest of our client. Now we simply have better tools that can help us tell that story — whether it’s video, demonstrative exhibits, or live testimony — whatever the case is.”

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Esquire Deposition Solutions, LLC

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