Using video-recorded expert depositions at trial

Best practices and authorities for the use of video-recorded expert deposition testimony, especially the importance of identifying all non-retained “expert” witnesses

2016 October

Using expert deposition testimony at trial can be a powerful tool in presenting and winning your case. But the effective use of an expert deposition requires advance planning. Various sections of the Code of Civil Procedure relating to experts and discovery provide the foundation for the strategic use of an expert deposition at trial (all Code sections refer to the Code of Civil Procedure unless otherwise identified). Understanding and applying the applicable rules, with an emphasis on using video deposition testimony for maximum impact, is critical to ensuring the success of your trial strategy.

Preparing to use an expert deposition at trial starts in the discovery phase

Identify all of your potential experts

The strategic use of expert deposition at trial requires ensuring you identify all of your potential experts in advance. Identifying your own retained expert(s) and your client’s treating doctors in the initial Section 2034.260 designation is a no-brainer. But remember that “experts” need not be limited to retained experts and treating physicians or other healthcare providers. You should designate any other witness from whom you may wish to elicit expert testimony as a non-retained expert in your expert designation, including any person(s) most qualified.

For example, in an employment case, the Human Resources or other management personnel who authorized and/or ratified on your client’s termination should be identified as a non-retained expert.

In the medical-malpractice context, perhaps you elicited key testimony from the Chief Nursing Officer on hospital practices or procedures. The strategic designation of experts can provide great avenues for cross-examining other witnesses, so make sure you identify all potential experts in the initial expert designation.

Video-recording expert depositions is key

Which is more powerful: forcing a witness on the stand to watch his video deposition (or that of some other witness), on display for the judge and jury to see, squirming in the witness chair, seeing a fearful/pained/shameful/arrogant/uncertain expression on his face, hearing his condescending/angry/tearful tone of voice, and waiting out the silent, pregnant pauses while the deponent racks his brain for the “right” answer; or, reading words to the witness from white pages in a booklet?

[A] witness’s demeanor [in a videotaped deposition] reflected in his motions, expression, voice inflections, etc., give the fact-finder a unique advantage in evaluating evidence, resulting in appellate courts granting greater deference to such findings. Video depositions can markedly increase accuracy and trustworthiness. In addition, to the extent that a video deposition reduces tedium, the fact-finder’s concentration and attention will be enhanced, again to the benefit of the decision process.

(Rice’s Toyota World, Inc. v. Southeast Toyota Distributors, Inc. (M.D.N.C. 1987) 114 C.R.D. 647, 649; see also, Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107 (recognizing video depositions capture verbal and nonverbal responses); Martinez v. Brownco Construction Co., Inc. (2012) 203 Cal.App.4th 507, 514-515 (authorizing the recovery of the cost of editing a video deposition, since “things have changed from the days of just reading dry transcript.... [¶] ... [¶] This is a reality of how cases are presented to [jurors].... [T]his is what is the accepted mode of trying cases to us. So it’s difficult to suggest that it is not part of the everyday trial work that it should not be covered in the costs.”).)

While retained experts are often professional witnesses, defense counsel will likely not prepare experts such as Human Resource managers to withstand a well-executed cross-examination at deposition. If you fail to videotape the deposition, though, all of that telling non-verbal communication is lost. The paper transcript simply cannot deliver body language, facial expression, tone of voice, and silence. Video-recording your expert depositions is critical to effectively using an expert deposition at trial, since we communicate through so much more than simply words.

Video recording a deposition begins with the deposition notice. Section 2025.220 requires the deposition notice to disclose, “Any intention by the party noticing the deposition to record the testimony by audio or video technology ….” (§ 2025.220(a)(5).) When the deponent is a treating physician or other expert, the Code requires the deposition notice to set forth, “Any intention to reserve the right to use at trial a video recording of the deposition testimony of a treating or consulting physician or of any expert witness under subdivision (d) of Section 2025.620. …” (§ 2025.220(a)(6).) Make sure this language is part of your standard deposition notice template, so when you get to trial, your brilliant strategy of using expert deposition testimony is not foiled by your own deficient notice. Further, if opposing counsel notices the deposition of your client’s treating healthcare providers, and you think you might want to use the video deposition at trial in lieu of live testimony, make sure you counter-notice the deposition and include the proper notices.

Overview of authority for using deposition testimony at trial

Strategically using expert deposition testimony at trial requires a solid understanding of how deposition testimony may be used at trial. Section 2025.620 generally allows a party to use a deposition at trial, stating, in pertinent part, “At the trial …, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition and did not serve a valid objection under section 2025.410, so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following provisions: ….”  Thus, this section authorizes the general use of deposition testimony at trial against a party – so long as that party was present (or represented) or did not object to proper notice of the deposition, and the testimony is otherwise admissible under the rules of evidence, subject to other provisions. (§ 2025.620.) § 2025.620(d): expert depositions

Subdivision (d) sets forth specific rules pertaining to experts, and can be a powerful tool for your presentation of evidence in trial. Section 2025.620, subdivision (d) permits a party to use the video deposition of an expert at any time, regardless of whether the expert is available to testify, will testify, or has testified, so long as proper notice was given. (§ 2025.620, subd.(d) (stating “Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340.”).)

The notice requirements referred to in subdivision (d) include reserving this right in the deposition notice itself, as discussed above, and designating the pertinent sections of the video you wish to play in advance. Note that § 2025.340, subdivision (m) is not limited to expert video depositions, and requires the party seeking to play the video deposition to designate excerpts from the transcript with sufficient time for the opposing party to object, the court to rule, and to subsequently edit the video. (§ 2025.340, subd. (m) (“A party intending to offer an audio or video recording of a deposition in evidence under section 2025.620 shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered. That notice shall be given within sufficient time for objections to be made and ruled on by the judge to whom the case is assigned for trial or hearing, and for any editing of the recording. Objections to all or part of the deposition shall be made in writing. The court may permit further designations of testimony and objections as justice may require. With respect to those portions of an audio or video record of deposition testimony that are not designated by any party or that are ruled to be objectionable, the court may order that the party offering the recording of the deposition at the trial or hearing suppress those portions, or that an edited version of the deposition recording be prepared for use at the trial or hearing. The original audio or video record of the deposition shall be preserved unaltered. If no stenographic record of the deposition testimony has previously been made, the party offering an audio or video recording of that testimony under Section 2025.620 shall accompany that offer with a stenographic transcript prepared from that recording.”) Check with the court to see if the judge has any particular preference for the video designations and transcript.

• § 2025.620(b): party depositions

Subdivision (b) is a crucial tool for the use of a deposition at trial. This section allows you to use a deposition “of a party …, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or [person most qualified] designee under Section 2025.230 of a party” regardless of the deponent’s availability to testify. (§ 2025.620, subd. (b).) Thus, you can use a deposition for any purpose – including using the deposition of one witness in the cross-examination of another witness – so long as the deponent was an officer, etc. at the time the deposition was taken.

Note that the depositions of non-party witnesses cannot generally be used at trial unless the witness is unavailable or for impeachment. (See § 2025.620, subds. (a), (c).) Thus, if the witness was not an employee at the time the deposition was taken, Section 2025.620, subd. (b) is not available. (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1005 (finding trial court improperly permitted use of deposition, since deponent was no longer an employee at the time of the deposition).)

The limitation that the deponent be an employee at the time of the deposition illustrates the importance of properly identifying any potential expert, to take advantage of expert deposition provision in Section 2025.620, subd. (d). For example, the Human Resources manager who signed off on your client’s termination moved to another company by the time of the deposition, or the Nursing Chief had already retired. Since they were not employees at the time of the deposition, the broad authority to use the deposition at any time is no longer available. But if you designate these deponents as non-retained experts, you may be able to use the video deposition in your case at any time.

Other provisions of § 2025.620

The other subdivisions of Section 2025.620 define a variety of more specific circumstances for using a deposition at trial. Subdivision (a) covers impeachment, stating, “Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the deponent as a witness, or for any other purpose permitted by the Evidence Code.” (§ 2025.620, subd. (a).)

Subdivision (c) authorizes the use of a deposition if a witness resides more than 150 miles from the place of trial, is unavailable for other reasons, or the court finds exceptional circumstances to permit deposition testimony despite the importance of live testimony in open court. (§ 2025.620, subd. (c)(1) (“The deponent resides more than 150 miles from the place of the trial or other hearing.”); § 2025.620, subd. (c)(2) (“The deponent, without the procurement or wrongdoing of the proponent of the deposition for the purpose of preventing testimony in open court, is any of the following: [¶] (A) Exempted or precluded on the ground of privilege from testifying concerning the matter to which the deponent’s testimony is relevant. [¶] (B) Disqualified from testifying. [¶] (C) Dead or unable to attend or testify because of existing physical or mental illness or infirmity. [¶] (D) Absent from the trial or other hearing and the court is unable to compel the deponent’s attendance by its process. [¶] (E) Absent from the trial or other hearing and the proponent of the deposition has exercised reasonable diligence but has been unable to procure the deponent’s attendance by the court’s process.”); § 2025.620, subd. (c)(3) (“Exceptional circumstances exist that make it desirable to allow the use of any deposition in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.”).)

The rule of completeness is found at subdivision (e), which states, “Subject to the requirements of this chapter, a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced.” (§ 2025.620, subd. (e).) Under the rule of completeness, then, expect a counter-designation from opposing counsel to your video deposition designations.

The remaining provisions of Section 2025.620 arise less commonly. Subdivision (f) states, “Substitution of parties does not affect the right to use depositions previously taken.” (§ 2025.620, subd. (f).) Subdivision (g) deals with the use of depositions in subsequent actions between the same parties. (§ 2025.620, subd. (g) (stating “When an action has been brought in any court of the United States or of any state, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the initial action may be used in the subsequent action as if originally taken in that subsequent action. A deposition previously taken may also be used as permitted by the Evidence Code.”).)

Section 2025.620 offers some powerful tools for presenting evidence through deposition at trial. Using these tools to your advantage is key.

Strategic use of expert depositions at trial

The broad rule of Section 2025.620, subdivision (d) permits you to use an expert deposition at any time, so long as you comply with notice requirements (subject, of course, to the court’s rulings on admissibility): “Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340.” (§ 2025.620(d).)

The strategic use of an expert deposition is limited only by your own creativity. The ability to play critical portions of an expert deposition – that of your own expert or an opposing one – can start in your opening statement, so getting rulings on your Section 2025.340(m) designations in advance is important. Note, however, that only deposition testimony introduced into evidence during trial may be used in closing argument. (Shaff v. Baldwin (1951) 107 Cal.App.2d 81, 86 (misconduct for attorney to read portions of deposition transcript not introduced into evidence).)

Playing a video deposition of an expert can also be very powerful in the course of examining witnesses. In fact, you can play the same video deposition clip again and again in your cross-examination of different witnesses, and the testimony you use should not be considered cumulative. (Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 266-267).

In Monroy, supra, the appellate court addressed limitations on the cross-examination of expert witnesses. Monroy involved a collision between a civilian and Los Angeles Police Department patrol vehicle. One issue in the case was whether the patrol vehicle was responding to an emergency call with the appropriate lights and siren. The appellate court found that the trial court abused its discretion in restricting the examination of expert witnesses by permitting “only one expert to testify to the same opinion, including percipient witnesses, regardless of which party elicited the testimony.” The plaintiffs were allowed to elicit an opinion in their case-in-chief, but were precluded from questioning other experts on the same issue, even if defense expert or police department personnel offered the opinion.

The court of appeal found the trial court’s unduly restrictive rulings an abuse of discretion, and issued some wonderful language illustrating the importance of not unduly interfering with the presentation of a plaintiff’s case, with a particular emphasis on the cross-examination of expert witnesses:

Trial courts may not use their powers to control the orderly conduct of proceedings, to prevent cumulative evidence, and to limit the number of expert witnesses, if it destroys a plaintiff’s evidentiary presentation. Overly restrictive limitations on the introduction of evidence and on the method and manner of presenting a case can undercut a plaintiff’s case by preventing that party from presenting evidence in an organized and coherent way. Even if a defense expert will testify to the same conclusion as a plaintiff’s own expert, the testimony will not be identical, will have different focuses, and will be accompanied by different explanations. Subtleties in responses can be critical. Repetition is often the key to believability, and credibility may be enhanced when a defense expert agrees with a plaintiff’s expert. Identical or virtually identical evidence may not be cumulative if there is significance to the evidentiary weight to be given. It is often invaluable to have evidence come from different sources.

The trial court also severely limited plaintiffs’ cross-examination of the defense’s main witnesses, even if the expected responses would have taken little time and would have addressed major factual issues. These restrictions failed to recognize the importance of cross-examination, which is crucial, especially of expert witnesses.

Furthermore, it must be observed that cross-examination is much more art than science. A skillful cross-examiner can fatally injure the opponent’s case and gain admissions that can strengthen his or her own. The recognition of these principles is even more important when cross-examining an adverse expert witness. The successful cross-examiner will attack not only the opinions and conclusions of the expert but also the factual underpinnings and rationale used by the expert in forming them. This frequently requires not only repetitive questions, but also asking the same question in different styles and ways. It can require a laborious construct of foundational facts and the use of hypothetical questions in order to demonstrate that the expert’s opinion is untenable, illogical, or inapt under the facts of the particular case being litigated. Cross-examination is frequently the measure that tips the scale in persuading the jury to accept the cross-examiner’s position and fatally wounds the case of the opposition.

While there can be no hard and fast rule regarding the limits of cross-examination, a trial court’s rulings should not be so overly restrictive as to deprive trial counsel of the tools necessary to probe, test, and even discredit the adverse expert witness.

(Id., at 266-267.)

Armed with Section 2025.620, subdivision (d) and Monroy, you can and should strategically use critical admissions from the defense experts, as well as important testimony from your own expert, in presenting your case at trial.

Further, don’t forget that you can still use the devastating admissions you got from the opposing expert in deposition at trial, even if opposing counsel decides not to call him or her because you destroyed the expert at deposition. Section 2034.310 states: “A party may call as a witness at trial an expert not previously designated by that party if either of the following conditions is satisfied: [¶] (a) That expert has been designated by another party and has thereafter been deposed under Article 3 (commencing with Section 2034.410). [¶] (b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other party’s expert witness, but may not include testimony that contradicts the opinion.” No need to lose the great admissions, as long as you videotaped the deposition.

One way of using admissions from adverse experts is to bolster your own expert’s opinion – and credibility in the eyes of the jury – by playing key concessions from the video deposition of the defense expert. For example, your expert has concluded your client is not a malingerer. The defense expert concedes there is no evidence of malingering for secondary gain. Before eliciting your expert’s opinion that your client is not a malingerer, play the defense expert’s deposition conceding that point first, and then ask your expert for her opinion on whether the plaintiff is out for secondary gain. Because the jury first sees that the defense expert agrees, your own expert’s opinion seems more credible.

Other considerations

Keep video deposition testimony interesting, concise, and to the point. Edit out objections and the colloquy of counsel. If you have to use extensive video deposition testimony, mix up the live and video testimony at trial. Finally, request CACI Instruction No. 208, Deposition as Substantive Evidence, so the jury knows the deposition testimony should be considered the same as a live testimony given in court.

The use of expert video deposition testimony can be invaluable in presenting your case at trial. Understanding the rules will help ensure that your strategic and creative use succeeds.