Britta Stanton and Pat Disbennett's Article, "Using Videotaped Depositions at Trial," Published in DBA Headnotes
by Britta Stanton and Pat Disbennett
Reading depositions at trial is tedious—and boring. A great way to avoid the ridiculous scene of lawyers asking each other questions and play-acting answers is to use videotape. But there are several rule-based, as well as practical considerations, which should guide effective use of videotape.
When Can You Use a Deposition Video at Trial?
Deposition video clips are evidence, and, therefore, must be admissible like any other evidence. That means each clip of testimony must contain admissible Q&A, and that the deposition video itself also must be admissible. Texas state and federal courts treat these threshold issues of admissibility differently. In Texas state court, a deposition may be used for any purpose in the same proceeding in which it was taken. Tex. R. Civ. P. 203.6. And as long as the deposition is taken in the same proceeding, the deposition is not considered hearsay under the Texas Rule of Evidence 801(e)(3). In short, you can generally use deposition videos interchangeably with live testimony in Texas state court.
Federal courts, on the other hand, disfavor deposition videos as a substitute for live testimony. This policy is manifested in Federal Rule of Civil Procedure 32, which limits the use of deposition clips to situations that mirror the hearsay exceptions, including: (i) impeachment; (ii) the deponent is a party-opponent; (iii) the deponent is unavailable at trial; or (iv) other “exceptional circumstances.” Fed. R. Civ. P. 32.
How Can You Use Deposition Video Clips During Trial?
A second issue to consider is the manner in which deposition video clips may be presented. For example, can you play your favorite clips in your preferred order, or must you intermix unfavorable clips or play them chronologically? If the plaintiff plays clips during its case-in-chief, does the defendant get to play a counter video or must it wait until its case-in-chief? Under both state and federal rules, these questions are largely left to the discretion of the trial court pursuant to its authority to control the mode and order of trial. See Tex. R. Evid. 611; Fed. R. Evid. 611(a). Consequently, advocates have room to argue their preferred presentations, for which the following rules and authorities may be helpful.
The rule of optional completeness is a significant tool (or hurdle) to persuade either a federal or state court of your position. See Tex. R. Evid. 107; Fed. R. Civ. P. 32(a)(6). You can use this rule to argue against a misleading or confusing presentation by your opposition, and then interject your own clips immediately to explain or give context to the initial clip. This is an effective way of interrupting your opposition’s flow. But caution: while the rule may allow you to interject your clips into the other side’s presentation, Texas courts have warned that the rule must be balanced against a party’s right “as a matter of trial strategy . . . to present his evidence in the order he believes constitutes the most effective presentation of his case, provided that it does not convey a distinctly false impression.” Jones v. Colley, 820 S.W.2d 863, 866 (Tex. App.-Texarkana 1991, writ denied).
Also, in federal court, keep in mind that more published cases exist to support or counter your position. Be armed with these cases before you argue deposition designations at trial. Examples include a case ordering a party to play clips from a single deposition all at once rather than “here and there during the case,” K.S. v. Detroit Pub. Sch., No. 14-12214, 2015 WL 6671560 (E.D. Mich. Nov. 2, 2015), a case allowing clips from fifteen depositions to be played without counter-designations, Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 199 F.R.D. 487, 489 (E.D.N.Y. 2001), and another excluding deposition clips from six corporate representative depositions in lieu of live testimony. Gonzalez Prod. Sys., Inc. v. Martinrea Int'l Inc., 310 F.R.D. 341, 344 (E.D. Mich. 2015).
- Ensure your witness’s name is on the record with a short explanation of his or her role in the case to orient the jury.
- Keep it short. Ten minutes is ideal, but try not to exceed 20 minutes, or you will risk losing the jury.
- Kill the effectiveness of a ‘bad’ videotaped deposition by designating so much ‘good’ testimony, the jury doesn’t remember any of it.
- Plan ahead: Learn the court’s preferences for playing video; also, get the other side’s objections ruled on to prevent interruption and have a plan for efficiently presenting the objections for ruling.
Britta Stanton is a partner and Pat Disbennett is an associate at Lynn Pinker Cox & Hurst, LLP. They can be reached at email@example.com and firstname.lastname@example.org., respectively.