Jurors fall asleep every day in U.S. courts. In the federal perjury trial of baseball pitcher Roger Clemens’ steroid usage, two jurors were dismissed for falling asleep. The judge scolded the prosecutors and the defense lawyers for asking too many unnecessary questions and boring the jury. Imagine if they had to present a video deposition at that trial. Videos can be uninteresting “talking heads” that run too long, and cause drowsiness. If jurors doze off, is the video itself to blame? The demands and challenges of knowing how to conduct interesting and effective trial video depositions requires both legal expertise and knowledge of video production.
Psychological studies show that jurors’ retention and understanding of information is typically high for the first 15 minutes, but then sharply declines. With these short attention spans, the direct examining attorney must bring out the evidence and score points quickly, then finishing strong, before anyone falls asleep. So here are some essential strategies for accomplishing just that:
Prepare questions in advance, making them easy to understand, and organized to flow with a theme.
Prepare the witness for being on camera, explaining the deposition’s procedural ground rules, and how appearance, especially attire, posture, eye contact, and mannerisms, all can affect the audience, and the jury. Before beginning, remove visual distractions and eliminate unnecessary noise. Arrange the seating so the witness can simultaneously face the camera and the questioner.
Prepare procedurally with opposition counsel by resolving matters such as stipulations, exhibit marking, objecting, and when to go off the record. The goal is to foster a non-distracting, well-paced video production.
Take advantage of the power of video by using the early minutes for important testimony because that is when the jurors watch and listen most intently. Create visual variety by using camerawork relevant to the testimony, and with close-ups when showing demonstrative evidence like photos, models, and documents. As the video progresses, be mindful of the jurors’ attention spans, and what they are seeing and hearing through the camera. Have the witness clarify unclear answers and technical terms, and go off the video record for unnecessary delays.
Keep it Short and Simple, just like investigative reporters and TV news anchors, whose questions elicit brief answers, and who keep their audiences interested by using lots of visual aids.
Witnesses who appear at trial on video, also can hold the jurors’ interest, persuading them without sacrificing important evidentiary elements, if the deposition is concise and easily understood. When you think like a lawyer, and communicate like a broadcast journalist, the witness’ message will be interesting, easy to understand, and the jury will stay awake to listen.