Video depositions, which were an infrequent event during my career for many years, are being used much more frequently these days. I’ve had depositions taken by video on many occasions to date. Until last week, I had never seen myself on the screen at a trial. I’ve only ever seen a video clip of another expert’s deposition one time, which was quite a few years ago.
My current case involved the valuation of a privately owned business in the context of a marital dissolution in Florida. Experts for both sides prepared valuation reports and depositions (video) were taken. The case settled, or so I thought, following the depositions, in part because my valuation conclusion was within 5% of the conclusion of the opposing expert. But there were other issues pertaining to personal goodwill versus enterprise goodwill that were, apparently, worth fighting over.
After many months, I was contacted by the attorney who retained me saying that, in fact, the case was unsettled and was going to trial. And so the trial occurred.
I presented my direct testimony and was crossed. The opposing counsel then tried to play a clip lasting more than an hour from my deposition. I read my deposition in preparation for trial, and was not aware of any problems that concerned me. So I wondered about his playing the clip.
After the clip went on for a few minutes, and after it was clear that the testimony was repetitive from both my direct testimony and cross-examination, the counsel for my side objected. As a result, the video playing ceased and my entire deposition was admitted as an exhibit. That was fine because, as I indicated, I was aware of no problems or inconsistencies in my testimony.
The opposing counsel put on his expert’s direct testimony. I was asked to provide some rebuttal. Then the opposing counsel played a ten-minute clip of excerpts from my deposition.
The end result was that I saw clips of about twenty minutes from my deposition in the matter presented in court.
Why am I writing this short post? Probably just to record the experience for me and for others who might have an interest.
- It was the first time ever, in more than 30 years of testifying, that an opposing counsel has played a portion of my video deposition in a trial.
- I thought I looked pretty good (given what the Good Lord provided for the videographer to work with!)
- I managed to avoid distracting mannerisms for the most part.
- My deposition testimony came across as measured and thoughtful, at least to me.
- To the best of my knowledge, there was no impeachment in any of the clips that were shown.
- I did wear a white shirt and tie, but had taken off my jacket. That dress was fine given the overall dress and atmosphere in the courtroom.
I don’t think that opposing counsel made any money by playing portions of my video testimony. Perhaps he was trying to intimidate me as he announced he would play the video early in the trial, before I came to testify.
Maybe I’ve missed something, but I don’t think so. There were no smoking guns in the deposition. There was not even anything that made me even a little uncomfortable.
I guess I’m left wondering why attorneys want to take video depositions of experts these days. Maybe using video clips at trial is a coming trend, but unless one can be caught saying turn left at the corner in the deposition when he said turn right at the corner at trial, I just don’t see the benefit.
However, the decision to take video depositions is not mine to make. If opposing counsels take them in the future, then, of course, I’ll participate. However, I will always be a bit better prepared for future depositions as a result of this recent trial experience. I’ll have my tie on, will work to be calm and measured in my responses, will be polite and courteous, and will attempt to avoid being baited for emotional responses.
And if I say to turn left at the corner in my deposition, I’ll be sure to say to turn left to the same question at trial.
Hope you have enjoyed this short, personal vignette.
New Book on Buy-Sell Agreements
The drafting of a new book on buy-sell agreements is almost complete. The working title is Buy-Sell Agreement Handbook for Attorneys. I am not an attorney. As always, I write based on my experience as a businessman and valuation guy.
My previous books on buy-sell agreements have been written from the perspective of business owners as in the title of the most recent book: Buy-Sell Agreements for Closely Held and Family Business Owners. Attorneys were, thankfully, one of the bigger markets for this book.
Many times, however, attorneys have said to me, in effect, “Chris, we like the ideas in your book. Do you have some template language to help us implement them?”
Until now, unfortunately, the answer was a “Not yet.” Now, this new book will contain detailed template language for several valuation processes for buy-sell agreements. I’m excited to get it to the point of making it available to attorneys, business appraisers, financial planners and, yes, business owners.
If you want to be notified when Buy-Sell Agreement Handbook for Attorneys becomes available, give me a quick email and we will put you on the list at email@example.com.