Face time makes a difference in the courtroom, where lawyers increasingly are using excerpts from video depositions to bolster their case and make an indelible impression on witnesses, jurors and judges.
In an age-discrimination challenge to a reduction in force (RIF) at Pratt & Whitney Rocketdyne, the builder of the space shuttles’ rocket engines, about 40 video-deposition excerpts were played to help the company win the case, according to Jon Meer, an attorney at Seyfarth Shaw in Los Angeles.
The plaintiff took a video deposition of the company’s HR professionals and managers involved in the RIF. While cross-examining the plaintiff, Meer played excerpts from these depositions to question the truthfulness of the plaintiff’s testimony.
So when the plaintiff testified, “I don’t think HR looked at my personnel file,” Meer countered, “That’s not what HR said,” and played an excerpt from the video testimony in which an HR professional said she looked at the file.
When plaintiff’s witnesses claimed that the process for the decision was unfair or uncaring, Meer showed a video excerpt with an HR professional who had tears in her eyes over the staff reductions, saying she had to lay off people she’d known for 20 years and it was the worst day of her life.
Meer said it’s more powerful to play this video testimony to impeach the testimony of plaintiff’s witnesses than to wait until the defendant’s witnesses get the chance to testify—and possibly not as emotionally or freely because of the intimidating factor of doing so in a courtroom.
Before trial, Meer had marked passages in the video testimony that were particularly favorable and had them numbered and at the ready on a disk. The excerpts were so effective that sometimes, as he was reaching for the remote to play one, the plaintiff would change his testimony.
Video depositions are easier to introduce into evidence than fumbling around with a deposition transcript. And it “breaks up the presentation,” too, making it less boring and more memorable, while showing the defense’s witnesses earlier than they would otherwise appear and preparing the jury and judge for testimony they will present, which, up until now, the defense has rarely been able to do.
Because video can be synchronized with a transcript on a computer, video excerpts can be done on the fly, but Meer prefers to have a select few at hand. He had chosen about 70 video-deposition excerpts to use in this case.
Meer doesn’t use video excerptsmainly as a substitute for witnesses who are unable to testify in person either because of an extremely busy schedule or poor health; they are presented in addition to someone’s in-person testimony. Meer said he insists that all depositions be videotaped, as the videos are more useful at trial. With a traditional deposition, the witness gets to review what he said and can make changes. Meer explained that sometimes people will even change a yes answer to a no or say something happened 50 times instead of five times, as they did previously. If testimony is videotaped, it can’t change— what’s said has been said, and too bad if it isn’t in the witnesses’ favor.
What’s more, opposing counsel behaves better when testimony is videotaped, Meer said. There are fewer instances of attorneys’ raising their voice or shenanigans like pounding on a table or throwing things. Meer recalled that in the days of traditional depositions without cameras, opposing counsel threw papers, a coffee mug and once a book at him.
How things are said matters more in video depositions. With a transcript, there are just questions and answers, not a display of how long it took the person to answer, how confident the witness was in answering and whether she winced during the answer. “A video shows all of that,” he said.
YouTube Videos, Social Media
Meer also used a YouTube video in the Pratt & Whitney Rocketdyne trial. The case involved a large-scale RIF that was a result of the end of space shuttle missions. Hundreds of people had to be laid off. When the date of the space shuttle’s final flight was being disputed, Meer had a YouTube video ready to show the final flight—and could say that 111 YouTube videos proved that the plaintiff’s witness was wrong.
Videos are easy to get into evidence. You can find out the date they were posted and who posted them, and because videos are in the public domain, the creators don’t have to be in the courtroom.
The next era in this is posts on social media, in addition to YouTube videos, Meer said. “So many people think work life is separate from nonwork life, and if they post something on the Internet it’s nonwork life, and they assume they are subject to privacy. It’s so easily found, and getting into evidence so much easier because the Internet is considered in the public domain.”
Not so with handwritten letters, for example. With those, lawyers have to get someone to testify that it was the supervisor’s handwriting, that the letter was received on x day and at x time, and whether the document is a copy or an original.
If it’s on the Internet, “you can just show it without authentication because anyone can look and see it.”
Meer added that his firm’s librarian says “People are only two friends removed from everyone else’s Facebook posts.” Although individuals may make their posts visible just to friends, their friends may have everything open to the public.
And if something unflattering is caught on video, it often makes its way onto YouTube. “You can have an exemplary life, and one bad day stays on the Internet forever,” Meer cautioned.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.