Trial Magazine

The modern civil trial typically has multiple witnesses presented by video deposition testimony. Your next deposition may be the trial testimony. Moving forward with the mentality that your ­depositions are trial make your depositions stronger and more impactful when showing them to jurors. In the wonderful world of editing, we can narrow video depositions down to the essential testimony needed for trial, so you want that video to have everything that would make for good trial testimony. It needs to hold the jurors’ attention, and it needs the feeling of a trial. If your mind-set going into your next deposition is “this is trial,” it will help you prepare for trial.

Don’t be boring. At trial, we use visual aids and exhibits to elicit testimony and teach jurors about our client’s case. Bring the deposition testimony to life the same way: Use visual aids, exhibits, animations, drawings, and more. Be creative far in advance of the deposition to prepare your visuals, just like you would for trial.

In recent depositions, we had construction zone workers use toys to reconstruct a construction zone scene where our client was killed. We used toy highway warning signs and orange flags, toy cars, toy trucks, toy construction flagmen, and so on. Using this trial testimony process in a deposition brought the tragic scene to life in a 3-D visual that everyone watching could understand.

In a recent Rule 30(b)(6) deposition, we took simple but important case facts and placed them on a PowerPoint slide. We then had the witness mark “true” or “false” on the documents. That’s trial.

Stand up. At your next deposition, start the examination sitting down. After 45 minutes to one hour, stand up while examining the witness. Move around the room—use exhibits and drawing boards, and look at evidence with the witness. What happens? It simply produces more interesting and engaging testimony.

Yes, it is different. Yes, it will throw off the defense. I am not suggesting that you stand up the entire time, but you can stand up and move around the conference room to elicit testimony when needed. For example, when you have a large visual or exhibit at a critical deposition, stand up to question the witness. Ask the witness to stand up with you to draw on the easel pad, mark a large visual aid, or hold a picture for the camera (jury).

Recently, the defense did not want me to sit close to its witness and made a big deal about where I sat at the conference room table. Defense counsel arrived early and filled up the seats near the witness on both sides of the table. I decided to sit as far away from the witness as I could. Ironically, I was about as far away from the witness as I would be in a courtroom when the witness is on the stand and I am at counsel table. I stood up and started deposing the witness, whom I had to approach with the exhibits and visual aids. I walked around the room dozens of times to cross-examine the witness. The witness had to stand up several times and engage with me on visuals and documents. It was a powerful examination during a deposition—and thus, a powerful examination at trial.

Cross-examination is key. Determine the most important questions for cross-examination, the most important facts for the jury to know, and the documents you need to impeach the witness. When you watch the deposition video, you want the same cross-examination cadence that happens in trial. A successful cross has rhythm and creates momentum leading up to the point or fact being established for the jury. I first learned about how important rhythm and cadence are to crowds (jurors) at the Texas Auction Academy when I went to auctioneer training. You must grab and hold the jurors’ attention.

When you start prepping for your next deposition, repeat this mantra: Depositions are trial.

Sach Oliver is a partner at Bailey & Oliver in Rogers, Ark. He can be reached at soliver@baileyoliverlawfirm.com.