March 20, 2014
How is technology used in deposition and trials? Last week I attended Technology in Fairfax Courtrooms: Come Kick Our Tires!, a Continuing Legal Education seminar sponsored by the Fairfax Bar Association. This program interested me because real estate and construction cases are rich in photographs, plats, large drawings, sample construction materials and other visual evidence. Courts across Virginia are installing high-tech equipment for use in presenting pictures, video, audio and other media in trials. This seminar is a useful overview of the technological sea change in trial practice, including presenting audio and visual recordings of depositions at trial.
The credibility of a party’s testimony is at the heart of any trial. Sometimes parties and other witnesses will change their testimony. Lawyers use deposition records to test credibility on cross-examination. A video or audio recording can recreate the deposition vividly for the jury. Impeachment by video is not a feature of most trials because of significant time and expense associated with use of the technology.
At the courtroom technology seminar, someone mentioned pop music superstar Justin Bieber’s March 6th video deposition. This video leaked to the news media. The lawsuit alleges that Mr. Bieber’s entourage assaulted a photojournalist. I usually avoid following the news about celebrities’ depositions. I am familiar with the usual witness behavior. I’ve taken depositions of parties, experts and other witnesses. A celebrity may not be any more prepared for a deposition than an ordinary person. I watched excerpts of the Justin Bieber deposition on YouTube to see if it illustrated any new strategies.
In one excerpt, attorney Mark DiCowden shows a video of a crowd of people next to a limousine. Mr. Dicowden asked Bieber to look at the “film” on a screen behind the witness. The witness glances at the screen, turns back to DiCowden and evasively responds, “Is this a film?” DiCowden tried to focus Bieber on the video to establish a foundation for questions. As a viewer, I struggled watching the screen within a screen while following the examination. To capture Justin Bieber’s interaction with the video, the court reporter zoomed out, making both the video and Bieber smaller. If counsel tried to use this at trial, I imagine the jurors, sharing monitors, would struggle with this as well, with the added distraction of live court action. Justin Bieber’s evasive remarks and body language stand out here in what might otherwise be a disjointed use of technology. Since only excerpts are available, it is difficult to determine whether he went on to actually answer substantive questions about the video.
I wonder whether Plaintiff’s decision to incur the expense of this video deposition (and any related motions) will ultimately be useful for settlement or resolving the case in the courtroom. How will the deposition record look to the jury weighing the credibility of the witness? The Justin Bieber deposition provides some insight into use of video exhibits within a video recorded deposition. Getting an adverse witness to alternatively focus on questions and a video playing behind him is a challenge.
Even if your case does not involve celebrities, a practice run helps to prepare you for a video deposition. For example, the attorney taking the deposition could experiment with different layouts for the camera, people, screen and other visual exhibits to see how they look on replay. On the other side, the witness may learn something from viewing a video of himself answering practice deposition questions. Retain a lawyer with trial and deposition experience with evidence similar to your dispute.
featured image credit: Steven Wilke via photopin cc
Comments (4)
Steve Lombardi, Attorney
John: I like your blog post about the Justin Bieber deposition. You make a good point with the video inside of a video and how that might be somewhat distracting to a jury. But it worked in the sense that Bieber was made to look immature and was easily moved to be combative. He was suckered into the fight so the video becomes irrelevant. I wish I knew how to make the shortened version of the blog so kindly put up with my longer link: http://www.lombardilaw.com/blog/lessons-mistakes-from-justin-biebers-deposition.cfm. The title on the Lombardi Law Firm (Iowa) blog (The Verdict) is Lessons & Mistakes from Justin Bieber’s Deposition posted on 03/20/2014. Good luck and I really like the masthead image you used.
John Colby Cowherd
Hi Steve,
I agree that Mark DiCowen succeeded if his goal was to create a video that reflected poorly on Justin Bieber (if the leaked excerpts are representative of the whole). I wonder if the Judge will order him to sit for a deposition again. This video is certainly embarrassing to Bieber. I have some tentative doubts about its trial impeachment value to Mr. DiCowen. I also wonder if the leak of the video to the media helps or hinders DiCowen’s efforts to favorably settle?
The railroad photo is from Charlottesville, Virginia where I was born (hospital not pictured).
John
Chris Falcon
John:
Thanks for the latest post. I watched portions of this deposition about a week ago and was cringing throughout.
I have not had to play video during a video deposition before. That said, if you are going to have someone watch a video, maybe don’t have him sit with his back to the screen. Also, lay down the foundation. If the attorney’s goal was to capture the video footage and Bieber’s reaction, he succeeded, kind of, but the logistics needed to be planned out better.
John Colby Cowherd
Chris,
I think most of TMZ’s audience reacts to the video with laughter and/or disgust. I share your cringing response, and imagine most attorneys react the same way out of an understanding the context of a deposition. This is real life.
I imagine that Mr. DiCowen or the videographer considered placing the screen in between the DiCowen and Bieber. I wonder if that would block Justin Bieber’s attorney from following along?
John