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Depositions: Zoom vs. In-Person

Recently, two separate claims managers said, “I want my attorney at the deposition, in the room, looking the other person in the eye.” OK. But, in today’s Zoom world, is “in-person” better?

I don’t think so. Particularly if you do it right, record the video, and maximize Zoom’s capabilities.

We live in a YouTube society. It is the No. 2 most visited website, trailing only Google (which owns it).

Additionally, YouTube is the primary source of news for many. And “how to” videos. And music. And…

YouTube has had a major impact on our society. Videos on YouTube have brought to light occurrences that would never otherwise have seen the light of day.

So why not align our evidence with the realities of today’s society? Why not present our case in the format most jurors get their information? And meet their expectations in a world in which everything is thought to be on video? Video is validation.

Let’s take it to the next level by maximizing the power of visualization. Integrate exhibits on screen with the testimony of the witness.

Video, from in-cab to Ring doorbells, is vital evidence in more and more cases. Why not have it onscreen while the witness comments, rather than disjointed in multiple media?

Instead of the “old school” of presenting the top of the witness’s head while he reads from the document or she comments on a photo, show it on screen, simultaneously with the testimony.

And let the jurors see it and read it for themselves. There are legion of studies about retaining information you see rather than hear.

Video greatly enhances the production. And trials are productions. They must be the most attention-retention presentation of information in the most credible manner, or how the jurors see it for themselves. That is why, back in the day, we had those blown-up photo and documents on Styrofoam boards. Let’s take it to the new reality. Let’s bring it into the 21st century.

Zoom can also have the “Nightline Effect.” On the late-night news show, guests were isolated in a studio looking only at the camera, creating a level of intentional discomfort.

Sure, the attorneys are seen on screen, but are small. Barely discernible and potentially distracting. And can only be seen to the witness and are not on the final video.

Sometimes you get really lucky and get a bonus by Zoom. For example, I recently took the Zoom deposition of a plaintiff in a case filed in Philadelphia. The plaintiff testified from his home, which was covered in Dallas Cowboy memorabilia. For a case in Philly. How do think that went when a jury of local Philadelphians saw the plaintiff’s shrine to the Cowboys, the city’s most hated sports franchise?

There are times for in-person depositions. But the vast majority can be more effective, efficient and more economical by Zoom.

However, neither in-person nor Zoom will be effective if the deposition is not done right. In 42 years of practice, I have seen my share of bad depositions. Bottom line: Zoom depositions can be much more impactful if done with the required preparation and vision for the end product that is most effective/persuasive and aligned with today’s video world.

This article was written by Doug Marcello, Esq. and appeared in Saxtun & Sump's newsletter.