By James J. Mangraviti, Jr., Esq.
It is especially important to excel during an expert witness video deposition. SEAK recommends the following:
1. Prepare with counsel and practice before a video camera to correct annoying, distracting, or unfavorable mannerisms, methods of answering questions, or nervous habits. Prepare with counsel and practice before a video camera. Upon reviewing the video, you should be able to note your annoying, distracting, or unfavorable mannerisms, methods of answering questions, or nervous habits. Correction of these mannerisms can make the difference between an expert who appears nervous and anxious to the jury and one who is calm, collected, and professional. Note that these “practice videos” may be discoverable.
2. Dress conservatively. Do not appear with gaudy or flashy jewelry, cell phones, or pagers. Image is extremely important. You don’t want to turn the jury off or lose credibility. Thomas Vesper suggests the following:
Conservative clothing is a must for a video deposition. A dark business suit with light blue shirt is appropriate for men, and a suit or long sleeve sedate dress with jewel neckline for women. Avoid excessive, glitzy or gaudy jewelry, accessories, or dangling earrings: they will distract video viewers from your testimony. Avoid red clothing, herringbone or tight plaid patterns. Makeup and hair should be simple and neat.
Choose your clothing colors carefully. Try to choose colors to wear in the middle range: blue, brown, tan, green, maroon, wine, gold, gray, and purple. Bright colors also work well. Your hair color should be considered: Light (gray or blonde) hair—clothing color should be light, beige, pink, light gray, light blue or other pastels. Dark (brown or black) hair—clothing should be medium to dark (avoid black), royal blue, forest green, burgundy, brown.
Do not wear white—the camera darkens your face unnaturally. Do not wear black—the camera will adjust to lighten the picture and wash out your complexion. Do not wear red—the camera will
also wash out your facial color. Avoid plaids, stripes, herringbone or loud patterns—besides distracting the camera, they tend to make you appear at least ten pounds heavier.
Personal note: Women—no frills, scarves, or “busy” accessories.”
3. Watch out for your nonverbal behavior and body language. Avoid the following:
- Appearing impatient
- Clearing your throat excessively
- Drumming on the table
- Eye blinking
- Fidgeting with pens and pencils
- Gritting your teeth
- Head nodding or shaking
- Looking at your watch
- Looks of disgust
- Playing with your hair
- Rocking back and forth in your chair
- Shifting your eyes
- Touching your face
- Wringing your hands
Regarding nonverbal behavior and body language, Thomas Vesper notes:
Effective non-verbal communication includes leaning forward, listening attentively, and using only minimal hand gestures. Do not sit in a swivel chair or you will undoubtedly swivel in it! Eye contact should be directed toward the questioner, not at the camera directly. (Note: the camera can be placed such that it is shooting over the shoulder and slightly to the side of the deposing attorney; or it can be set for a side shot of both the deposing attorney and the deponent, or just the deponent. The over-the-shoulder shot is preferable if the tape will be used in court because it will allow the jury to see your facial expressions.)
Sit comfortably but upright and alert. You should be relaxed and comfortable. Do not fidget. However, your forthright demeanor and sincerity may become suspect if you slouch or become so lax that you appear to be nonchalant, unconcerned and bored with the solemnity of this serious court proceeding. Your testimony is important, therefore please give it the dignity it deserves.
4. Avoid eating, smoking, drinking, chewing gum, or chewing on pens or pencils. This may distract the jury, make you look bad, and may make the audio portion of your testimony harder to understand. If the jury is distracted or has to listen closely to understand you, it is likely that they will daydream and not listen to you at all.
5. Speak clearly and distinctly. Depending on the quality of the sound recording equipment, your voice may not always be audible with background noise. Stop speaking if and when someone else is talking, wait, and then resume your answer if you were interrupted. Do not interrupt or rush to answer when the questioner is still speaking. Please speak clearly, out loud, and with careful enunciation so that your words are not slurred or mumbled.
6. Look directly at the camera when testifying. You will keep the jury more interested and appear more credible.
7. Avoid long, pregnant pauses that make you look evasive or uninformed. Vesper suggests the following:
Avoid “dead air.” Be aware that real time has greater significance in a video deposition. Our customary instruction for a witness is to pause and take time before answering. On videotape your pauses will seem longer. Pauses or “dead air” may suggest to jurors that you do not know the answer. Therefore, in a video deposition, you should answer as quickly as you can after listening carefully to the question. Please try not to play with or linger over documents after you have reviewed them. Rather you should look up and listen for the attorney’s next question.
8. Turn off cell phones and do not take phone calls. You want to appear as though your entire focus is on the questioning and that you are taking your responsibility seriously. If you don’t focus on your testimony, why should the jury?
9. When handling exhibits, make sure you hold them so that they can be appreciated fully by the viewers, the judge, and the jury.
10. Avoid making unnecessary and distracting noise by rustling papers, touching the microphone, or moving furniture. Again, you want to make it easy for the jury to listen to and receive your testimony. If it is hard for them to hear, they may mentally “turn you off.”
11. Avoid being goaded into flashes of anger, arrogance, and combativeness. This may quickly turn off the jury or fact finder and make you seem biased. You may also say something that was not carefully considered that can come back to haunt you.
12. Use make-up and powder (men and women) to avoid shiny noses, heads, and a washed-out look. Image may be 90% of the battle with a jury. You need to look good.
13. Try to not appear evasive, suspicious, nervous, or anxious. You will be less credible if you seem ill at ease. Smiling can be very effective and disarming. Do not let yourself be distracted by counsel. This does not look good on camera.
14. Prepare by reviewing other video depositions taken by opposing counsel. This preparation will expose you to the tone, tactics, questions, and techniques of opposing counsel. Ask retaining counsel to help you obtain these videos.
15. Review your prior video depositions to learn how you can improve your performance. While watching yourself on video may be difficult, it is an excellent learning tool. This review will help you eliminate or reduce your nervous mannerisms and help you improve your presentation skills.
James J. Mangraviti, Jr., Esq., has trained thousands of expert witnesses through seminars, conferences, corporate training, training for professional societies, and training for governmental agencies including the FBI, IRS, NYPD, Secret Service, and Department of Defense. He is also frequently called by experts, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. Mr. Mangraviti assists expert witnesses one-on-one with report writing, mentoring, and practice development. He is a former litigator who currently serves as Principal of the expert witness training company SEAK, Inc. (www.testifyingtraining.com). Mr. Mangraviti received his BA degree in mathematics summa cum laude from Boston College and his JD degree cum laude from Boston College Law School. Mr. Mangraviti has designed dozens of expert witness training programs and has personally taught experts in a group setting over 200 times since 1997. He is the co-author of thirty books, including:
 Be aware, though, that this preparation session can be a subject of inquiry at the deposition. “Did you meet with counsel prior to giving this deposition today…? What did you do and discuss?”
 Thomas Vesper, ATLA Deposition Notebook, 3rd ed., (Thompson/West: 2005) pp. 123, 124.
 Ibid. at pp. 123, 124.
 Ibid. at pp. 123, 124.
How to Be an Effective Expert Witness at Deposition and Trial: The SEAK Guide to Testifying as an Expert Witness How to Be a Successful Expert Witness: SEAK’s A–Z Guide to Expert Witnessing How to Write an Expert Witness Report; How to Prepare Your Expert Witness for Deposition; The Biggest Mistakes Expert Witnesses Make and How to Avoid Them; and How to Market Your Expert Witness Practice: Evidence-Based Best Practices.
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