Videotaping of expert witnesses

Videotaping the testimony of both your own experts and defendants’ experts can be key to a trial victory

2014 April

If a picture is “worth a thousand words,” a video would increase that value by a factor of 10. Videotaping of witnesses has become more commonplace and every deposition notice which goes out to an opponent should include a reference to section 2025.220(a)(5) of the Code of Civil Procedure, which states “A videotape of this deposition will be taken and may be used in lieu of live testimony at trial.” While you don’t always decide to actually do the videotaping, or even use it, you have advised the other side of your intent in the event you determine it is going to be of value in prosecuting your case. The rationale of timely giving this information as part of this notice or in response to receiving a notice of deposition is important, because I have actually had challenges to videotaping of depositions, especially depositions of experts.

I have made it my practice to videotape the depositions of all of my treating and percipient medical witnesses in any case where that testimony is vital to successfully prosecuting the action. The vagaries of medical practice, trial dates, trial locations, etc., make it more imperative now than ever to videotape the deposition. It is relatively inexpensive to videotape a deposition, and almost all court-reporting firms now provide this as an additional service. This practice ensures that you have the necessary medical testimony at trial, arbitration or mediation, and it is inexpensive insurance that you are able to present the requisite testimony. (Code Civ. Proc., § 2025.220(a)(6).)

I have found that medical people are very responsive to a request to have their deposition videotaped, especially when they are your expert, in that there is minimal inconvenience and it could eliminate a court appearance. Be sure to timely advise your medical expert that the deposition will be videotaped and make sure they are comfortable with and agreeable to it. Review the anticipated procedure and be sure you follow all of the requirements set forth in Code of Civil Procedure section 2025.340.

Preparation for taping

As part of the preparation for videotaping your own medical witnesses, make sure that the deposition is taken at his or her office or another comfortable facility, preferably one at his or her suggestion. I go to the facility myself in anticipation of the deposition to be certain it is suitable for making an “appropriate” videotape, including the proper background, staging, and sufficient room that the witness does not appear cramped or uncomfortable.

Try to ensure, as much as possible, that the witness is appropriately dressed and understands the value of his or her appearance in the same manner as if the witness is testifying at trial. This takes some thought, in that you want to create the right impression of this person to the jury. Depending on how well you know the witness and how cooperative and/or interested the witness is in the outcome of the case, you may go over the attire that is most advisable. A suit or sport coat with a shirt and tie or a conservative dress or slacks is usually preferred. Under certain circumstances however, having the witness appear in green scrubs or white medical attire can create an impression that this is a “hands on” type of physician rather than someone who simply testifies as an expert.

Having the client’s/patient’s file organized and indexed is also important for videotaped expert depositions. Scrambling to find a document, and giving the appearance of disorganization will not engender confidence in the quality of the expert’s testimony, not to mention the care and treatment provided to your clients. Ensuring that key documents, which you will want to show during a deposition, are readily available is also of importance.

Tips for success

Get to the deposition early and talk to the videographer to make sure he or she is capable of accomplishing what you wish to do. Being able to quickly zoom in on documents, diagrams, models, etc., is extremely important in having a smooth deposition with information that flows easily and understandably for the jury. Be sure that the videographer understands the importance of the deposition and the videotaping of same, in the same way you impart this goal to a court reporter.

Be sure your expert has the diagrams, graphics, and models that are necessary to illustrate his or her testimony more understandably. You may be required to procure the items yourself and review them with the physicians before deposition testimony. Also, be sure the witness is comfortable with drawing and explaining his or her testimony. Sometimes you are fortunate enough to have someone who is a “teacher” type who enjoys explaining the testimony. If not, your questions need to be sufficiently specific to properly illustrate and make understandable to the jury the witness’s testimony. Include in your questions the expert’s qualifications and foundation of the opinions and observations.

The reluctant witness

What do you do with a reluctant witness who does not want to be videotaped and refuses to testify at trial? There is no absolute answer to this question and your powers of persuasion necessarily come into play. Once you reach the physician, which is often difficult, explain the significance of the testimony and its value to your client. Also stress the witness’s ability to inform the public about this kind of injury: what to look for; what is the appropriate treatment, etc. One method I have used is to reiterate that part of the witness’s obligation as a treater is to help restore your client to a pre-injury condition. Part of that restoration involves having adequate finances available to pay for the requisite care and treatment, and that his or her testimony is necessary to achieve this.

As a motivator, you should explain that the videotape will preclude testimony at trial, unless, of course, the other side subpoenas your expert. Explain that the latter will be very unlikely if the expert’s opinions and observations are strong, understandable, and illustrative.

Be aware during the deposition of your own conduct. This includes your voice, your objections, your demeanor, etc. If anyone is going to be a jerk during the deposition, make sure it’s the other side and not you.

Benefits of taping

The benefit of the videotaping of your own experts is multi-faceted. Aside from the value of ensuring that you have testimony to present at time of trial, often the deposition is not taken by the defense trial lawyer or the senior attorney handling the case. A junior defense lawyer may simply attend with a “checklist” of questions for taking the deposition, and who will go through the inquiry without understanding or evaluating the answers; not doing adequate follow-up questions; not being familiar with the medical records; not being familiar with the injury; not being familiar with care and treatment, etc.

If you use the deposition at trial, the other side is “stuck” with the testimony unless they wish to subpoena the medical provider to trial. Even if this is done, the “content” of your medical provider’s testimony has already been embedded in the mind of the jury and the follow-up will be less valuable.

Because today we are so accustomed to viewing things on screens and monitors, be it televisions, computers, cell phones, etc., I feel videotaped testimony is given authenticity and believability to a greater extent than even live testimony. Additionally, a videotape is susceptible to “playbacks” if that becomes desirable in light of a jury question. Another benefit of a videotaped deposition is the ability to show it to other experts, rather than just giving them a stack of depositions and asking them to read and review same. Experts are often reluctant to do a document-intensive review, but are willing to pop a CD into a player and watch it during a break, dinner, etc. This more desirable method can result in a greater assurance that the information will actually be reviewed and evaluated.

Finally, cost is a significant factor. If your opponent takes the deposition, your expert’s fee is paid by them, and all you are paying for is the copy of the deposition and the video. This is much cheaper than having the individual appear at trial, even when only a half-day is required. Even if you are taking your own expert’s deposition and paying for his or her time, it is usually more economical than having this individual appear at trial, especially if the trial appearance includes travel time and a second preparation for trial; the initial preparation having already been done for the deposition.

Effect on opponent’s experts

Videotaping your opponent’s experts is also of great value. Deposition is a time when he or she may not be as prepared as he or she would be for trial, and all those issues that arose with your expert can also be present with theirs. Often times, defense medical witnesses have testified so repeatedly and are so familiar with the same type of injury and the defense attorney that they take shortcuts, or do not prepare at all. Their failure to review portions of records, inadequate understanding of facts, lack of memory of your client, unfamiliarity with literature, etc., can all be to your benefit.

Again, often the individual defending the deposition of your opponent’s medical witness will not be the trial lawyer or senior attorney. Your opponent will simply send an associate attorney to “sit in” and stay under cover. Many of the things you would use as surprise questions at trial, so as not to educate the opposing expert as to your theory of the case, or the failure of his or her analysis and foundations for his or her opinions will be sprung on the witness at deposition. Often the facial expressions are priceless. A defense expert’s demeanor, dress, attitude and facial expressions are all part of the presentation, and may be quite different than they would be at trial. The expert may not be aware that the videotape can be used at trial for impeachment, and therefore spends less time preparing for deposition than he or she would for trial.

In taking the deposition of percipient witnesses, who are affiliated with the defense, the videotaping of the depositions can be even more important. Using segments of these videotapes during your case-in-chief can be very valuable in setting up answers to defenses which will be later presented, and/or telling a complete story of what had transpired up to the time of the incident or injury. This is especially true in medical negligence cases. Laying a good foundation through video segments before your expert testifies on standard of care makes the opinion much more acceptable, believable and understandable.

Often, percipient witnesses in a medical-negligence case have moved out of the area where the incident or injury occurred and thus beyond subpoena range. Rather than having their depositions read to the jury, it is much more acceptable and believable to show their live testimony by videotape.

The defendant’s deposition in a medical- negligence case is extremely important to videotape. My usual practice is to have the defendant appear as one of the first witnesses at trial. Having the ability to impeach the defendant immediately with deposition testimony that is visual, as well as showing the reporter’s transcript on the screen, can make for a very effective cross-examination.

When a series of medical depositions are to be taken and videotaped in a given case, it is advisable to use the same reporting service and videographer. This familiarity engenders a sense of camaraderie and loyalty and allows you the opportunity to inquire of the individuals as to how they evaluated the deponent’s testimony. Remember that these are members of the public, and while you have hired them, they are usually willing to express honest opinions as far as evaluating the testimony at which they were present.

The familiarity with the subject matter also can prevent or limit the number of interruptions during the testimony for pronunciation, spelling of words, and names, etc. I have often been in situations where hearing the uninterrupted response was critical to my case, but the critical response was either not picked up by the reporter because it was simply an aside, or wasn’t taken down verbatim by the reporter and did not become part of the official transcript. Videotaping the aside or mumbled words make them part of the case. Be sure you are clear with the videographer as to when you go off the record, and that when you’re not off the record everything is to be recorded.