Try opening with a videotaped with a videotaped deposition: to get jurors' attention during your opening statement, let them see your opponents' admissions on screen, in their own words.

Most courts now allow the use of various types of exhibits during opening statement. Some forward-thinking judges are even allowing lawyers to play videotaped depositions during the lawyers' opening remarks.

It's a persuasive trial technique. An opening accompanied by a video showing a defendant making a damaging admission-in his or her own words--is simply more convincing to jurors than a traditional opening.

This is partly because jurors are accustomed to receiving information in fast-changing, multimedia formats. Alternating from the trial lawyer to a witness's taped deposition merely replicates what many jurors see every day on television. For example, news programs switch back and forth from anchors in the studio to reporters in field locations and from live broadcast to videotaped segments.

Television crime shows--like the CSI programs have also affected juror expectations. Jurors not only assume that the lawyers will have conducted a thorough investigation using modern technology, but they will also want proof of this.

Playing videotaped deposition segments on an interactive board with high-quality resolution and sound brings the jury into the case investigation. It allows them to experience the facts as they were discovered.

A juror's view of you and your client's case at the start of trial can range from healthy skepticism to outright mistrust. You can help build trust with audiovisual proof of the elements of your client's case as you present them in your opening statement. By providing this evidence early, you can establish yourself as a truth-teller right from the start.

Four principles guide the presentation of videotaped deposition testimony during an opening statement. First, tell the jury that you will prove each element of your case using your opponent's own words. Say, "I'm not going to ask you to believe me. You will hear the actual words of the witnesses, spoken by the witnesses themselves." The video clips you use should correspond closely with the elements they are offered to satisfy.

Second, make sure that the presentation's audio and visual quality is excellent. Use an interactive whiteboard such as a SMART Board, for example, which has outstanding visual and audio quality. (1)

Third, be prepared to confront objections, both to the practice of playing video depositions in your opening and to the specific content of the segments you wish to show. Make sure your clips will actually be admitted into evidence later.

Typically, admissions of a party opponent are safe bets to get into evidence during trial. If the admission is being offered against a company, be certain the witness will be considered an authorized representative or agent, so that the words will constitute an admission of the company. (2)

Finally, decide well in advance of trial which deposition segments you will show during your opening and provide this information to your opponents.

The more notice they have, the less likely that the trial court will sustain their objections.

The legal framework

The rule in many states and the federal courts is that at the trial, "any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof." (3) By this standard alone, videotaped depositions would appear allowable in openings. That opening statements should enable the jury to grasp the key issues is an oft-repeated truism: "The purpose of the opening statement 'is to prepare the minds of the jury to follow the evidence and to more readily discern its materiality, force, and effect.'" (4)

Videotaped depositions serve this purpose well. From the opening, jurors will know not only the key issues of the case, but also precisely what the parties had to say on the key issues during their depositions.

Seeing the videotaped deposition during opening arms jurors with a specific expectation about what the witness will say and how he or she will say it. By allowing the jury to see deposition testimony early, jurors get a baseline--a standard against which to judge the witness's demeanor and, consequently, an enhanced ability to assess witness credibility.

These considerations drive the modern judicial view, which allows the use of exhibits during opening statement. (5) As one leading commentator has said,

   It is well settled that, within the discretion of
   the trial judge, diagrams, charts, and
   graphs can properly be used in opening
   statement. The rule extends both (1) to exhibits
   that counsel intends later to introduce
   and (2) to those that will not be used
   subsequently in the trial but are either extemporized
   (as a blackboard) or prepared
   in advance of trial to summarize a claim. (6)

Before the 1970s, however, most courts prohibited the use of exhibits during opening statement. The South Dakota Supreme Court set forth the traditional rule in Binegar v. Day:

   The purpose and object of the opening
   statement is to briefly and concisely state
   the issues involved in the litigation and familiarize
   the trial judge and jury with the
   nature of the case and the evidence to be
   produced. It is not evidence. It should not
   be argument. Counsel should not name or
   identify any witness or exhibit. At this stage
   of the trial, the jury is peculiarly alert and
   impressionable and the importance of confining
   the opening statement to the language
   and intent of the statute is obvious.
   The use of the blackboard in the opening
   statement in the manner employed by defendant's
   counsel was improper and the
   statements of counsel in connection with its
   usage and his comments on the items of
   special damage were highly irregular. (7)

While some judges still adhere to this view (check the judicial profiles of many federal judges), two new approaches have emerged. Some courts allow lawyers to use exhibits during opening only if their opponent consents to it. (8) In another approach, the court may allow counsel to use exhibits but admonish them that they bear the risk that they've promised the jury an exhibit they couldn't deliver into evidence in the event it excludes the evidence later. (9)

Even under today's more liberal approach, two objections are frequently made to opening statements with video depositions: prejudice and incompleteness. The prejudice argument is based on concerns that the jury will "prejudge" the case before it hears any evidence. As one objecting attorney argued, "[I]t is an attempt to introduce to the jury an exhibit before the exhibit is introduced, before there is evidence to substantiate it." (10)

Creating the impression in opening that your side should win is, of course, the purpose of the opening generally, and of playing depositions in particular. But that does not make it prejudicial. To the contrary, playing a party's actual words, with the witness's own inflections and expressions, is far fairer to that party than having the presenting lawyer read those words or, as is traditional, paraphrase the testimony while telling the jury what he or she thinks the evidence will show.

The incompleteness objection is also untenable. The objection is typically made that the proffered video clips are taken out of context and do not fairly reflect the whole of the witness's deposition testimony. The answer is to allow opposing counsel to play segments that explain or soften the admissions in opening. Counter-designations are fair game. (11)

Although the case law specifically supporting the use of videotaped depositions during openings is not yet developed, many cases from around the country support closely related propositions, such as allowing depositions to be read during openings. For example, in Spence v. Southern Pine Electric Cooperative, the plaintiff contended that the trial court erred by allowing the defendant to use enlarged excerpts of deposition testimony of two of her witnesses during opening statements. (12)

Rejecting the plaintiff's contention, the Alabama Supreme Court concluded that the trial court was well within its discretion to allow defense counsel to use the blowups:

   This court has long upheld the use of visual
   aids to illustrate testimony or arguments.
   Ms. Spence's witnesses testified at the trial
   exactly as they had previously testified in
   their depositions. Nothing in the record indicates
   that the use of the props prejudiced
   Ms. Spence or that the trial court abused its
   discretion in allowing the defendant's attorney
   to use them. (13)

Similarly, in Thunder Hawk ex rel. Jensen v. Union Pacific Railroad Co., the Wyoming Supreme Court rejected the plaintiff's contention that the trial court had erred in permitting defense counsel to read from the plaintiff's deposition transcript during opening statements. (14) The plaintiff argued that reading his deposition was improper because he had testified in person and was cross-examined. The court summarily disposed of this objection, reasoning that the Wyoming civil procedure rules allow "any deposition to be used against any party for any purpose which is permitted by the Wyoming Rules of Evidence. The statements which [the plaintiff] made in his deposition were admissible because they were admissions by a party-opponent." (15)

Courts are also increasingly comfortable with the use of PowerPoint presentations. In State of Arizona v. Sucharew, the defendant argued that the trial court abused its discretion in permitting the prosecutor to use a PowerPoint presentation in his opening statement because the presentation involved a "computer-generated exhibit. Although a computer was used in the presentation, the actual presentation did not include any computer simulation or other similar evidence; rather, it was essentially a slide show of photographic exhibits. The photographs ... were the same ones disclosed to defendant during pretrial discovery and later admitted into evidence at trial." (16)

The Arizona Court of Appeals concluded that the trial court did not abuse its discretion in permitting the prosecutor's use of the PowerPoint presentation under these circumstances.

Choose carefully

Keep in mind that if you play a defendant's admission during opening, the defendant will be entitled to play any other portion of the deposition that clarifies, explains, or limits the admission. Thus, when you are choosing video segments, think carefully about whether you will open the door to having the admission explained away. But the fact that the defendant can play additional segments to clarify the admission actually provides your most powerful argument to a skeptical judge, which is that playing videotaped depositions works no unfairness on the defendant.

You need not videotape all depositions to take advantage of this technique for opening statements. Because you are likely to be limited to playing admissions of party opponents, you need only videotape the depositions of the named defendants (if they are individuals) or corporate designees, officers, and managing agents. (17) Though videotaping depositions may put deponents more on guard, you will usually get more truthful and candid answers when videotaping because of the witnesses' awareness that the camera is capturing their facial expressions and gestures. Furthermore, defense lawyers are less likely to materially interfere during a videotaped deposition, so witnesses are not coached on a question-by-question basis.

Using videotaped depositions of party opponents during opening statement is a powerful and persuasive trial technique. It satisfies jurors' expectations for the presentation of information through modern media formats and fosters trust in you as trial counsel. Just be sure that the deposition segments will ultimately be admitted into evidence before using them in your opening.

Notes

(1.) Information about this technology is available at http://smarttech.com.

(2.) See Fed. R. Evid. 801 (d) (2).

(3.) Fed. R. Civ. P. 32(a).

(4.) People v. Green, 302 P.2d 307, 312 (Cal. 1956) (quoting People v. Arnold, 250 P. 168, 174 (Cal. 1926) (en banc)), overruled on other grounds, People v. Morse, 388 P.2d 33 (Cal. 1964).

(5.) See e.g. Ark. State Hwy. Commn. v. Basin Dev. Corp., 571 S.W.2d 578,579 (Ark. 1978) (approving use of city map during opening); McGee v. State, 529 S.E.2d 366, 368 (Ga. 2000) (approving use of floor-plan drawing during opening); Campbell v. Menze Constr. Co., 166 N.W.2d 624, 625-26 (Mich. App. 1968) (approving use of damages chart with auto repair costs, medical expenses, and lost wages during opening) ; Porter v. Erickson Transport Corp., 851 S.W.2d 725,742-43 (Mo. App. 1993) (per curiam) (approving printed display of key negligence contentions during opening).

(6.) Gregory P. Joseph, Modern Visual Evidence [section] 9.02[3] [a], at 9-13 to 9-14 (L.J. Seminars-Press 1984 & Supp. 1991); accord Steven Lubet, Modern Trial Advocacy: Analysis and Practice 436 (2d ed., Natl. Inst. Tr. Advoc. 1997) ("Since the purpose of the opening statement is to explain what the evidence will show, you are entitled to read from or display documents and other exhibits that you expect to be admitted into evidence.").

(7.) 120 N.W.2d 521, 525 (S.D. 1963).

(8.) See United States v. Green, 2005 U.S. Dist. LEXIS 32321 (W.D. Pa. Aug. 16, 2005) ("Counsel may use exhibits or charts in opening argument provided that the same have been provided to opposing counsel beforehand and either agreement was reached or the court has ruled upon the matter.").

(9.) See e.g. Edwards v. Grant Anesthesia Assocs., Inc., 2000 WL 1879775, at *6 (Ohio App. Dec. 29, 2000).

(10.) Campbell, 166 N.W.2d at 625.

(11.) See Fed. R. Civ. P. 32 (a) (4) ("If only part of a deposition is offered in evidence by a party, an adverse party may require the offer or to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.").

(12.) 643 So. 2d 970, 972 (Ala. 1994).

(13.) Id.

(14.) 891 P.2d 773,782 (Wyo. 1995).

(15.) Id.; cf Dinofrio v. Paquelet, 2001 WL 256257 at * 3 (Ohio App. Mar. 12, 2001) (finding trial court erred in not allowing deposition testimony to be read during opening statement, but corrected error when allowing portions of deposition to be read at trial).

(16.) 66 P.3d 59, 64 (Ariz. App. 2003); see also Green, 302 P.2d at 312 (trial court has discretion to permit use, during opening statement, of motion picture and photographs later admitted into evidence).

(17.) For a discussion of why trial lawyers should videotape every deposition, especially those of corporate designees and others who could bind a party with their admissions, see Robert J. Mongeluzzi & David L. Kwass, Proving Your Case with Manufacturer Employee Depositions, TRIAL 56 (Feb. 2006).

ROBERT J. MONGELUZZI and DAVID L. KWASS practice law at Saltz, Mongeluzzi, Barrett & Bendesky in Philadelphia. The views expressed in this article are the authors' and do not constitute an endorsement of any product by TRIAL or the American Association for Justice.