For insurance adjusters and claims representatives, heading into trial can be a busy and stressful time. One of the most important decisions is whether to call your own expert witnesses live at trial or to present them by video trial deposition (where allowed). As you plan for expert testimony, the choice is straightforward: live witnesses can create energy in the courtroom, while video depositions deliver cost control and timing certainty.
Experienced outside counsel can help clients decide quickly by matching the format to the case strategy — the budget, the schedule, and how much juror engagement is necessary to win. Considering the pros and cons of video depositions vs. live testimony can be one of the most significant determinations to be made as trial counsel and by your client.
Pros of Video Trial Depositions
- Cost-effective: Video trial depositions can be much cheaper than bringing an expert live to trial, and can make the cost of trying the case more palatable for your client. Choose video trial depositions in cases where the trial costs should be minimized and the need for impactful live testimony is less significant.
- Schedule coordination: It is much easier to coordinate a video trial deposition with your expert’s schedule than it can be to have them live at trial on a specific date. This can be particularly important if the expert is out of state and cannot be subpoenaed. However, if an expert is local and available, aim for live testimony if possible.
- Trial length: Effective use of video depositions can shorten or control the length of trial. They are taken beforehand and edited, so the video length is already known going into trial, while the testimony of live witnesses can be unpredictable. The parties and Judge can better anticipate the length of trial and keep it manageable when testimony is captured ahead of time.
- Streamline trial prep: It can streamline trial preparation for outside counsel, which can also cut down on trial preparation costs for the client. If the video deposition is already taken, outside counsel do not need to spend valuable time preparing for that particular witness going in. It also allows outside counsel to focus on the individual witness when the video deposition is taken, rather than preparing for them as one of many witnesses.
- Not a surprise at trial: The testimony is known ahead of time and will not be a surprise at trial. This can help the client control/manage the risks of trial, and give your client an opportunity to better evaluate the case pre-trial. Unlike the unpredictability of live witness testimony, you will know ahead of time if the video trial deposition went poorly or particularly well for that witness. Your client can therefore factor that into pre-trial decision-making and settlement negotiations.
- Streamline testimony: It can streamline the testimony, because all objections must be ruled upon and edited out before trial. The jury will only see the clean, streamlined video without any objections to break up the testimony.
Cons of Video Trial Depositions
- Jury engagement: Video trial depositions are inevitably less splashy and engaging for the jury. Listening to live witnesses can be much more effective and memorable for the jury, with all the tension and excitement of live direct and cross examination.
- Jury interest: Video trial depositions can easily lose the jury’s interest. The judges often turn the lights off to play the videos and, if you happen to be forced to play the video directly after lunch, the jury is often fighting a losing battle against boredom/sleepiness. On the other hand, consider opting for a video trial deposition in lieu of live testimony if you want the jury to pay a little less attention to a certain part of the case.
- Strategy adjustment: Using video trial depositions can prevent outside counsel from adjusting their questioning or strategy for that witness in response to what has happened live at trial. You may have wished to adjust your questioning on a certain topic given the evidence or testimony that has already come out at trial, but since the video trial deposition is already completed, it cannot be changed or adjusted in the moment.
- Perception/impact: The jury can sometimes look askance at a witness who did not “bother” to come to trial live. Outside counsel should acknowledge the reason for using a video during the deposition itself to counteract that risk (such as thanking an out-of-state witness or an extremely busy physician for appearing.) If your opposing party is also presenting witnesses by video deposition, particularly experts of the same specialty, this negative can be minimized. Strategic practice note: if the opposing party is using a video trial deposition of their expert, it also presents an opportunity to maximize the impact to the jury by calling your own opposing expert witness live.
Key Takeaways
Success at trial can often turn on small decisions. Evaluate the risks and benefits of using live witnesses versus video trial depositions to maximize chances for favorable resolution.
Use video when predictability, cost discipline, or scheduling constraints matter most; use live testimony when the expert’s presence is central to persuasion. Practically, start with three checks: 1) budget and travel/scheduling realities, 2) how much jury engagement this expert truly drives, and 3) whether pre-edited testimony strengthens settlement leverage by removing surprises.
Experienced counsel, like attorneys at Galloway, will translate the pros and cons into defensible choices aligned to budget, timeline, trial strategy, and business objectives.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any action based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
