NEW RESEARCH ON RECORDING VIDEO DEPOSITIONS ANSWERS OLD QUESTIONS

Over the years we have heard and had many strong opinions on what approach deponents should take when being video recorded, which was not much of a concern just a few decades ago. However, as deposition transcripts have been increasingly supplemented by synchronized video and audio, witness credibility shifted from judgement of the words on a page to many of the same elements of credibility that apply at trial (i.e., does the witness look credible? do they sound credible?). Furthermore, depositions happen much more often than trials, and in the vast majority of the cases that settle a particularly good witness or a shockingly bad witness could have a direct impact on settlement value.

Watching a video deposition, a fact finder or mediator can now see that the witness was looking down and appearing downtrodden as they quietly answered a question instead of looking and sounding confident and credible with good eye contact and a strong vocal tone. Both trial consultants and attorneys have begun to wonder if there was a preferable way to present the witness on video. We decided to test the two prevailing opinions. The first came from those who worried that the witness talking to an off-camera attorney at an angle, somewhere between a profile and straight on, did not capture the eye contact of the witness effectively. This first group also worried that this angle made the deponent look like they were being interrogated in a police station. They were concerned that this made their client look shady, which is not a term we have ever seen associated with credibility.

This first group’s solution was to have the witness take all questions and answer looking directly into the camera, much in the way an interviewee would take a question on a national television news program. This way, they contended, the witness would look and sound their best to who really matters: The fact finder and/or the mediator who might watch the video.

The second group in many ways carried the torch for the status quo. They saw nothing wrong with the witness looking and talking to an off-camera attorney. Often they would point out that most witnesses do not have the skill to testify to a camera. Furthermore, they would argue that it looked fake. The witness was clearly hurting their credibility by looking too much like an advocate instead of simply being a witness. The first group would counter that most people would assume that the camera was right next to the attorney asking the questions. After all, the sound doesn’t clearly identify how far from the camera the attorney is.

Two other Tsongas jury consultants and I, Jonathan Lytle, Ph.D. and Jeffrey Jarman. Ph.D., did the experiment. Two hundred seventy four people were assigned randomly to four groups: the plaintiff testifying directly into the camera or from the ¾ angle, or the defendant testifying directly into the camera or from a ¾ angle (this was accomplished by setting up two cameras that taped the same testimony from two different angles at the same time). The fact pattern was of the securities realm. It had to do with demutualization, a topic that seemed to come with little baggage for the average citizen. The results were recently published in The Jury Expert.

The conclusion: There was no difference.

For now, it seems both groups were right. Our current conclusion is that the credibility is the same because in both cases the nonverbal behavior of the witness appears to be targeted at the person asking the question in each scenario. Some have asked me if there is any point to going through the trouble of teaching a witness to testify to the camera if it isn’t better. My answer has been that if the witness would rather testify to the camera than look at the attorney because they can do it in a natural way (and maybe because the attorney tends to make faces) then it’s still possibly a better option.

Others have written about the findings and shared how they will change their practice as a result, such as Ken Broda-Bahm, Ph.D. of Persuasion Strategies. He states, “Up to this point, I’ve been relatively agnositic on whether this eye contact means a camera-focus or an attorney-focus question. Generally, I’ll counsel witnesses to do what feels natural, which is typically to look at the attorney, not the camera. Occasionally, however, I’ll work with a witness who does better when they’re looking into the camera. For example, when the deposing attorney is either intentionally or unintentionally distracting the witness, a camera-focus can be an easy way to shut down that distraction.”

Broda-Bahm also provides some advice we find consistent with our research and our experience regarding what not to do:

• The ‘table gaze’ of speaking directly into the surface in front of them.

• The ‘notes gaze’ of focusing on papers, even when the witness isn’t using them.

• The ‘friendly attorney’ gaze of looking at your own counsel instead of the deposing attorney.

• The ‘swimming gaze’ of looking around the room at everything or nothing.

We at Tsongas hope to continue exploring this field of study. The next question we hope to find an answer to is the following: “Does camera angle have an effect if the witness has lower credibility?” The credibility of the subject in our experiment was rated relatively highly by all four groups. What if the subject displayed many of the qualities of a “typical” witness instead of a “good” witness? What if they state they don’t know something that your typical fact finder or mediator would believe they would know? What if their eyes wandered as they accessed their memory just a little too long? What if they exhibited any of the behaviors Broda-Bahm points out as typical credibility damagers? In these instances, does camera angle exacerbate issues with credibility? Can it help alleviate them?

We hope to study this in the near future.