Videotaped depositions of expert witnesses are being used with increased frequency. During impeachment, clips from a videotaped deposition can make a dramatic impression on the jury or fact finder. Preparing an expert for videotaped deposition means you will have to concern yourself with the additional issues of the expert’s:
• General appearance,
• Distracting or unpleasant mannerisms,
• The pace at which he answers questions,
• Facial expressions,
• Body language,
• Confidence, and
• Likability on tape.
Naturally, your expert witness will be concerned about mechanics of the videotaping and whether it will be manipulated to his disadvantage. Attorneys should explain to their expert that the Rules of Civil Procedure prohibit the misrepresentation of appearance or demeanor using recording techniques. Attorneys, however, may attempt to distort the expert’s appearance by:
• Pacing to force the expert’s eyes to move back and forth,
• Using lighting to wash out the witness,
• Using extreme close-ups to emphasize facial expressions, and
• Getting the expert angry.
Explain and show your expert how portions of his videotaped deposition may be shown during cross-examination to impeach him. The authors find that showing the expert video clips of both effective and ineffective experts testifying at deposition helps drive this point home in a dramatic and effective fashion. The authors use dozens of these clips to help prepare experts. Critiquing a video deposition from one of your expert’s past cases can be particularly helpful.