Almost no attorneys videotape depositions. The simple reason: COST. It costs a minimum a $400 to videotape a deposition and the cost can run as high as $700-$800. With such high costs (which, by the way, can be eliminated), the question is: why do I always videotape depositions?

The answer: if a deposition is not worth videotaping, it’s not worth taking the deposition. Videotape depositions capture the witness’s facial expressions, pauses, change in voice tone and mannerisms that are never visible on a deposition transcript. Such subtleties can make or break your case.

In a birth asphyxia case that I handled ten years ago, I learned why videotape is crucial for a deposition. In the deposition of a labor and delivery nurse, the question posed was whether good and accepted nursing standards required the nurse to notify the physician when confronted with non-reassuring fetal heart tracings. The ob nurse paused, then looked up at the ceiling (as if looking for an escape hatch through the ceiling), and then she finally answered, “that depends”. The answer was meaningless, but the way that he answered the question was pure gold.

When the lawsuit went to trial and I played the videotape of the nurse’s deposition testimony, I watched the expressions on the jurors’ faces as they saw the nurse cringe while answering the question. After the trial concluded, the jury later told me that the nurse’s answer to this single question was the reason they had decided to side with the plaintiff. Let’s get this right: a $400 videotape deposition provided the basis for a multiple seven figure recovery ($4.1 million to be exact).

The videotape brings the deposition to life and keeps the jury interested. While (if you do like almost everyone) the read back of a deposition is boring, uninteresting and has no impact on jury deliberations. Juries snooze through the read-backs of depositions and I have not seen, or heard of, single case where a jury based its verdict on a read-back of a deposition.

You might be thinking, “great for you, but I handle small cases worth less than $10,000 and the cost of videotaping doesn’t make sense for me.” Au contraire, my friend. There is no reason that you have a pay a videographer $400 to $600 just to stand in front of a camcorder during our depositions. Frankly, I always thought videographers have a pretty good gig all things considered.

If properly noticed, the Uniform Rules of Trial Courts allow you to videotape the deposition yourself without a highly paid videographer. Even the smallest value cases can be videotaped by you or someone in your office, with a janitor or the dry cleaning delivery guy standing next to the camcorder. With a camcorder in hand, you will have zero cost of videotaping your depositions. Now, how many lawyers actually do this? Zero! That’s because lawyers do not believe in videotaping depositions as a general principle.

Why don’t lawyers videotape depositions (besides the cost)? Most lawyers don’t videotape depositions simply because “that’s not how we do things in these parts.” Bad answer. I hope one lawyer reading this will give videotape a shot in their next case. You will be impressed by how powerful videotape can be at trial.