Parties involved in litigation should consider videotaping key depositions, and not only when there is a possibility that a witness will be unavailable for trial or seriously ill. Videotaped depositions are gaining in popularity because the rules of procedure have become more liberal—videotaped depositions are now permitted as of right—and because the video of a witness testifying under oath contains important visual information about the witness that a transcript does not capture. For example, the video might show that the witness looked away or fidgeted when answering certain questions, took a long time to answer certain questions, or acted in other ways suggestive of deception. All of these visual data points can be critical to a judge or jury evaluating the credibility of the witness. Videotaped depositions are much closer to live testimony that is the hallmark of our adversarial legal system.
Aside from their utility at trial, videotaped depositions can be key to jumpstart the settlement process. A party or key witness may not perform well in a videotaped deposition. For example, the deponent might exhibit body language indicative of deception, forget the existence of a document, make an unfortunate admission, or perhaps just misrepresent information in a way that is easily refuted. On the other hand, a party or key witness might perform extremely well in a deposition. In either event, the parties and counsel often have to recalibrate their views of the case overall and their likelihood of success. The videotaped record of the deposition can highlight the risks of taking the case to trial and get the parties and counsel talking about a settlement to resolve the dispute short of trial. Thus, the additional cost of a videotaped deposition is often a wise investment.