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In a society in which the average adult is more likely to have seen the last episode of American Idol than to have read The Grapes of Wrath, and the average child prefers video games to bedtime stories, it should come as no surprise that the use of multimedia tools is essential to success in trial or arbitration. Many commentators have recognized the importance of using modern technology to persuade a judge, jury or panel of arbitrators. The American Bar Association has even created a Web page designed to guide attorneys through this “technological puzzle,” available at www.abanet.org/tech/ltrc/courttech.html. Paradoxically, however, few attorneys effectively put these techniques into practice, instead operating under the misconception that compelling rhetoric alone is enough to win. One widely overlooked strategy that is both highly persuasive and cost-effective is the use of integrated videotaped depositions to impeach a witness’s credibility. While many litigators videotape depositions, few actually maximize the use of the videotapes at trial. With a few extra steps, these videotapes can become a compelling and invaluable impeachment tool. As with any deposition, the key is thorough and careful planning. The questioner must be familiar with the whole universe of documents in the case and understand the interplay of the various issues � before the deposition begins. The questioner himself or herself must read every document and determine in advance of the deposition which documents are most likely to be useful at trial. While some litigators choose to organize a deposition by issues or topics, for purposes of trial impeachment, it is often more effective to examine the witness chronologically, creating a “story” that will translate well for trial. Strategic considerations There are a few strategic matters the questioner should keep in mind when taking a videotaped deposition for purposes of trial impeachment. The questioner should ask the questions precisely the same way he or she will at the trial, with each question standing on its own � and avoid falling into a conversational style and assuming that portions of the question will be understood from the prior question. Such a conversational style does not create impeachment. It is important to go slowly and think through every question � the questions should be thorough and complete in themselves. The questioner must phrase questions so that they can be translated into complete and crisp video clips later on. Thus, “And then what?” becomes “What did you do after pushing the victim down the stairs?” This ensures that a single question and answer can be turned into a video clip that will not require five minutes of questions and answers for context. While one of the objectives in a videotaped deposition is to elucidate an adverse witness’s true colors, attitude, tone of voice and defensiveness, the flip side is that the questioner needs always to keep his or her own “true colors” in mind. It is especially important to be cool, calm and polite in a videotaped deposition, because the questioner will be as much “on stage” as the witness when the video clips are played at trial. The questioner must maintain the same personality and demeanor during the deposition as he or she will present at trial. Technical details must be addressed in advance. The selection of a professional videographer who carefully monitors video and audio quality is essential. The backdrop for the witness should be kept simple and the lighting must be bright, soft and even. Background noise (and interference from BlackBerrys and other electronics) must be eliminated. When preparing one’s own witness for a videotaped deposition, the witness should be advised that he or she cannot expect to present a defensive personality on the videotape, but be more forthcoming and effusive at trial. The standard deposition preparation advice, to “just answer the precise question asked,” may not be appropriate, as it could appear that the witness testifying at trial is two-faced � not the same person who testified in deposition. One’s videotaped deposition witness similarly should be made aware of nonverbal behavior, tone of voice and attitude. The witness should be made to understand that he or she cannot expect to bring a different, more cooperative personality to trial. After the deposition, the attorney should have the witness study the videotaped deposition before the trial so that his or her answers and demeanor remain consistent. Once the videotaped deposition is complete, the tape must be obtained in an MPEG2 digitized format with a sync file to enable the selection of short impeachment clips. There are third-party vendors and trial support companies that can assist with this process. Although a litigation technology consultant may be needed to convert and format the videotape, a tech-savvy attorney or legal assistant can then actually prepare the clips quite quickly, using a trial-presentation program. This process enables the trial lawyer to pick and play clips selected, even during an opposing witness’s direct examination, and to display the transcript text on the presentation screen below the witness’s image. Short and sweet The impeachment video clips should be kept short and sweet, given the typical juror’s attention span. The trial attorney who will examine the witness must personally and carefully go through the deposition transcript to select questions and answers to be made into the clips. This critical preparation work simply cannot be delegated to someone else. At trial, the questioner must ask the questions precisely as they were asked during the deposition. It is also more persuasive if the documents bear the same exhibit numbers in deposition and at trial. The use of videotaped depositions to impeach a witness’s credibility at trial has a dual effect: It persuades the audience (judge, jury or arbitrator) while also persuading the adverse witness that the questioner has complete command of the testimony. As one trial attorney who regularly uses video of key deposition testimony during trial has pointed out, “[i]t is devastatingly effective to have a witness say one thing and show a video of them saying another thing during the deposition.” See Peter Hall, “Opening Act: Lawyers are Trying Video in Statements,” 29 (4) Pa. L. Wkly., November 2006, at 2. The use of video clips to impeach has a much greater impact on an audience than simply reading a passage of the transcript into the record. It is well established that individuals are better able to learn and integrate information when it is presented both visually and orally. “Studies show that the use of visual aids to assist in oral presentation can ‘facilitate comprehension [and] increase understanding and retention levels by as much as sixty-five percent. Additionally, information which is perceived by the individual from a variety of methods (aural, visual and written) is retained and understood at a substantially higher level.’ ” J. Bradley Ponder, “ But Look Over Here: How the Use of Technology at Trial Mesmerized Jurors and Secures Verdicts,” 29 L. & Psychol. Rev., Spring 2005, at 291. Accordingly, the attorney who impeaches with videotape is much more likely to put a lasting and memorable dent in a witness’s credibility than the attorney who relies on reading testimony. The second major benefit of using videotaped deposition clips during a hearing or a trial is their effect on the witness. No matter how well prepared, a witness will be taken aback the first time he or she sees a video clip of himself or herself saying something different from what he or she has just said under oath. Very shortly, the witness experiences such cognitive dissonance that he or she begins to give the answers he or she thinks the questioner wants � simply to avoid seeing another clip. Indeed, even the most disagreeable and stubborn witnesses sometimes start to cooperate in the examination, after being impeached several times. And, if they continue to force the playing of more video clips, they only appear more contrary and less credible to the audience. Either way, it is win-win for the prepared lawyer. Linda Dakin-Grimm is a partner, and Alyssa Rower is an associate, in the litigation and reinsurance practice groups at Milbank, Tweed, Hadley & McCloy. Dakin-Grimm practices in the firm’s Los Angeles office, and Rower in its New York office. They can be contacted at [email protected] and [email protected], respectively.

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