Lawyers are increasingly videotaping the depositions of expert witnesses. These videos permit counsel to later play excerpts of the expert and show his demeanor, tone, and body language in addition to his words.

David B. Markowitz, writing for SEAK, Inc., gave this advice on how to excel at your videotaped deposition.

  1. The camera magnifies and exaggerates everything.
    • movement in the chair
    • use of hands
    • holding paper or pen
    • posture
    • demonstrations of nervousness
    • pauses, or other excessive use of time (e.g. reading)
    • look at exhibits carefully, as needed, but no more
    • facial expressions
    • picking, twitching, twirling and other distractions
    • drinking coffee or water
    • piles of paper
    • dress like you will dress at trial

 

  1. The videotape will be edited by someone who wants to show you in an unfavorable way.

 

  1. The audience will only see the witness.
    • remember the camera is always on (unless you are told it is off); but only on the witness
    • any comment may be used, even if not answering a question; avoid jokes or wisecracks
    • don’t be fooled by the informality of the other people in the room; the witness will be compared to the formality of the trial
    • never say anything that you wouldn’t say to the judge or jury

  1. Dot, Dash. Give a one short sentence responsive answer, then explain, qualify, or discuss as needed.
    • keep the long part of the answer responsive to the question. 3-5 sentences are optimum.

 

  1. Never appear evasive; always appear to welcome the question and want to answer it.

 

  1. Do not display frustrations with repetitive, stupid, or misstated questions. Use every question as another opportunity to talk to the decision maker.

 

  1. Appear helpful and cooperative, not combative; e.g., if asked an ambiguous or confusing question, don’t insult the question or the questioner; try to determine the actual question and then answer it.

 

  1. Stay calm and professional.
    • the judge/jury won’t understand why you are angry, hostile or uncooperative
    • act respectful toward the questioner

  1. Do not overstate your position. Avoid absolute statements (always; never) unless you are sure they are correct.

 

  1. If you don’t know, say you don’t know. Don’t guess at the answer or evade the question by answering a different question.

 

  1. Tone & timbre:
    • do not act arrogant or self-important
    • appear informed, knowledgeable, helpful, cooperative

 

  1. Be cautious of assumptions within all questions.
    • dispute assumptions that you know to be false
    • point out assumptions that you cannot confirm as true or false
    • don’t let the questioner put words in your mouth that you don’t know to be true

 

  1. Disengage from the questioner if you are feeling aroused or trapped.
    • look at the camera if needed to avoid questioner
    • do not appear to look at the attorney who hired you to get prompts

 

  1. It is acceptable to create and use summaries: dates, numbers, names, calculations, conclusions.

 

  1. Do not appear surprised or embarrassed by questions that are surprising or embarrassing.
    • simply answer the question truthfully; don’t avoid the question or argue its relevance
    • understand that it is fair for the questioner to attack based on:
      • bias (claims of bias, even if not true)
      • inconsistent statements
      • memory
      • lack of personal knowledge
      • relationship with lawyer or party
      • concealment
      • exaggeration
      • payment for services