The astute trial lawyer must always be aware of the jurors' ability to process information and effectively learn from that information. Perhaps this is why trial lawyers have long familiarized themselves with the psychological concepts of primacy and recency—that which a juror hears first and last will be far more memorable than that which has been lost in the middle. Of equal importance is the psychological concept that information that we both see and hear is processed and retained better than that which we hear alone. Studies have repeatedly shown that people recall 65 percent of the information that they have seen and heard after three days, when compared to 10 percent of information that they have only heard.1
It is against this backdrop that lawyers must carefully consider the use of the video deposition as a tool at trial. Both the Federal Rules of Civil Procedure (FRCP 30(b)(3)) and the CPLR (§3113(b)) permit depositions to be videotaped without a showing of "special circumstances" provided appropriate notice is given and procedural rules are followed. The question at the outset, however, is not whether you can take a video deposition, but whether the video deposition is appropriate for the specific case. The issue is whether the video will provide insight and information that is not available from a written transcript alone. In basic terms, the question is always whether the video will help or hurt your cause.
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