The age of digital deposition is here. Courtrooms are wired for it. Juries are eating it up. Your biggest competitor just won a major decision with it. How can you make it work for you?

inData was pleased to join you on April 12, 2001 at ECALSM - New York, at the law firm of Clifford Chance Rogers & Wells, Hosted by Lynda Snyder. Mark Reichenbach of Pillsbury Winthrop, Sal Zurzolo of Sills Cummis and Todd Goldberg of TAG Litigation provided support for presenter logistics and preparation of sample data. Stanley Sandstorm of inData represented TrialDirector™. During the presentation about electronic trial presentation, preparation and organization, many questions arose regarding the effective use of deposition video. This article is the first in a two-part series discussing the technical issues that need to be addressed for using deposition video effectively during trial, arbitration or settlement conference. This article deals specifically with the art of producing a clean, distraction-free deposition video.

There is clear correlation between the art of creating deposition video and producing Hollywood movies. We can compare the attorneys and witnesses to the actors or the people on screen and whom the video is about. The arguments and testimony are the script, perhaps not prescribed word for word, but rehearsed and carefully delivered just the same. The courtroom and deposition milieu are the stage and sets. And finally, fair digital presentation techniques are the "special effects" that make the deposition video compelling and effective for the triers of fact to watch. When deposition video is all coordinated by an artful and experienced trial technology consultant (set designer and director), the result is "blockbuster" witness presentation and impeachment video produced to help you win your case.

Luckily, compelling deposition video can be achieved much more cost effectively and in substantially less time than a Hollywood blockbuster. To do requires a commitment to quality and attention to detail. Remember the old sayings, "a visual image lasts forever" and "a picture is worth a thousand words." You’re better off with no video deposition or digital presentation for trial than you are with poorly produced deposition video.

The key element to successful deposition video is attention to detail. Minimize distractions that divert attention away from the witness by attending to simple "in-frame" or "on-camera" considerations and exerting strict quality control. The objective is to produce the best courtroom presentation possible, leaving little or no room for the opposition to exploit the witness, testimony or presentation. The best way to do this is to look to the trial technology pros who know high impact visual communication — the legal industry’s version of a Hollywood movie producer.

Clear the Set!

"Know the set." Expect the trial technology consultant, or whoever is "producing" the deposition video, to take time to scope out the setting well in advance, especially if it is going to be an off site location. This will help determine if any distractions exist, how to minimize them and how to compensate for site deficiencies.

Identify the best visual background for the setting and your witness’. Are there shelves full of law books, an attractive wall in the background or should the videographer provide a suitable backdrop? A good background will complement and enhance the witness’ attire, skin tone, and hair. Additionally, the background should be pleasant and appropriate to the witness. The background for an expert in biological sciences my have technical books and or equipment to place him or her in the proper setting. A doctor may best be placed in an office having a background with medical books, models, and degrees.

When considering the background, make sure it is as distraction free as possible. Watch for décor located around the room, such as plants, furniture or artwork that may appear to grow out of the witness’ head, shoulder or side. Generally avoid windows, especially if people or cars will be passing through the view. This also applies to indoor windows open to hallways and atriums, providing views of office staff working or walking. You don’t want to have a deposition where the witness is giving vital answers to make your case as the office staff celebrates a birthday in the background. Remember that windows can also reflect off camera activities going on in the room. These reflections might catch someone doing something unsightly. While windows can enhance the background if there is appropriate, beautiful, or interesting scenery visible and plants make for attractive props, they may detract from the testimony and draw attention away from the witness.

Have your trial technology consultant investigate the audio environment of the area. Examine adjoining rooms for computer, climate control or other electronic equipment that may be housed within the room, adjacent rooms or across the hallway. Some types of mechanical, climate control, or power equipment create an annoying hum or rumble that will be detected by sensitive audio apparatus. Locate all telephones and other communication devices in the immediate area and make arrangements to either disable them or program them not to ring during the deposition. This includes cellular phones, PDAs, and pagers brought in by any of the participants.

Lights!

The trial technology consultant should also take into consideration any natural lighting in the room at different times of the day and how it influences the overall appearance of the room. The trial technology consultant will take the time to survey the room at different times of the day to assess if there are any significant shifts in natural lighting and how to compensate for it. Window coverings should adequately manage the sun’s effects without making the room too dark. Inconsistent lighting can also be stabilized with studio grade lighting equipment, which the videographer should be able to supply in extreme circumstances.

Evaluate the effects of fluorescent lighting on the witness’ pallor, clothes and surroundings. Does the lighting make the witness look unnatural, "sickly", or "bluish?" Does the lighting case a "halo" over the witness? The appearance of sainthood can be very distracting. Will bright lighting cause the witness to squint? You shouldn’t be trying to make the other side’s witness look sneaky. A simple rule-of-thumb when considering the image of the witness is to ask yourself if the video represents a fair and accurate representation of the witness.

Bear in mind if you’re using special lighting that lights can be quite hot. Temperature control is an important consideration not only for comfort but also for diminishing distractions. A hot, uncomfortable witness can appear sluggishly indifferent or nervously sweaty, and a cold witness will speak quickly or appear tense — either way the perception will be different than what was intended. Do all you can to ensure that the room temperature will remain constant throughout the day, despite changes in sun position or time of day. Secure access to the thermostat so you can easily control the climate and keep it at comfortable levels.

Camera!

Choosing the videographer is one of the most important decisions in the process. Video companies specializing in deposition are all similar in price, so choose the best. Inexperienced, inferior or incompetent videography compromises the quality of the final product, no matter how prepared your witness and perfect the setting. You should ask to preview samples of previously produced depositions and insist on the company’s best quality videographer, camera, support staff and supplies.

The videographer’s equipment should be of professional grade and broadcast quality. The camera should be high-end digital or a professional SVHS or Beta SP camcorder, which is the type of camera used by broadcast news cameramen in the field. If the witness is "mission critical," an option you may want to consider, is to have a second camera and VCR available during the deposition for recording a back up set of tapes. Demand the same standard of quality for this devise as you do for the primary camera. Any cameras should be stabilized on tripods for consistently even and steady images. After all, you’re not shooting The Blair Witch Project, and you don’t want the witness to appear "shaky."

All videotapes being used should be fresh and new. Older and previously used tapes lose quality over time and with each recording, thus compromising the performance of the superior-grade equipment. The videographer should have an ample supply of tapes to last the entire day and then some, just in case.

Ask to preview the frame composition (how it is set up) through the camera viewfinder before taping begins. Things to look for include:

the witness should be centered and/or balanced with any exhibits or other essential parties;
the witness needs to be clearly and fully in view;
exhibits or other essential parties must be clearly and fully in view, without obstructing the witness;
anything that will detract from the witness is avoided(plants in the background that will seem to grow out of the witness’s head, pointers in the foreground that will appear to "poke" the witness in the eyes, ears, mouth or nose);
the lighting doesn’t glare from behind the witness causing a halo or shine too brightly from the front causing squinting or shadowing;
the frame is free from any superfluous people, props or and distractions;
the court reporter and attorneys are positioned outside the frame.
Have the videographer map out what is in the field of view so everyone is aware of proper positioning and perimeters. Tape or markers can be placed to define the margins. Instruct everyone to put personal items outside the field of view (i.e. water, laptops, papers, files, etc.). Leave the foreground for things pertaining to the deposition and limit the amount of "office clutter" around the witness. This will create an undistracted background and a neat foreground that will be pleasant for the camera.

Sound Check!

Lapel or lavaliere microphones should be placed on everyone who will be speaking; this includes witnesses, translators, attorneys and opposing counsel. Ambient microphones should be provided for anyone who will be interjecting. Insist on separate mics for all parties who speak and require the videographer to bring a broadcast quality sound mixer to coordinate and balance all of the voices. Sound checks should be conducted on each person and microphone to make sure the voices are balanced and of good quality. Listen to some playback prior to beginning to ensure that none of the voices are over-modulated or under-modulated.

Another option would be to record each voice on a separate sound track. Having voices recorded on separate audio tracks allows for the removal of "voice cross-over during editing." This means that if an attorney is objecting at the same time a question is being asked, the audio track can be edited so that both the question and the objection can be heard more clearly. Again, this solution is best utilized for a mission critical witness.

Ask the videographer to provide nonverbal "countdown" notes or signals. These are cards or hand gestures that communicate how soon it is before the end of the tape without whispering in the background (i.e. half hour, twenty minutes, ten minutes, five minutes, off tape). This allows the attorneys to plan whether another question, answer or more information can fit into the remaining time or if it is time to take a break and change the tape. The communication method should be determined beforehand, silent and transparent to the camera and consistent throughout the deposition to avoid confusion.

Action!

Guide your witness(es), just as a Hollywood director instructs actors. They need advice about what to wear, how to sit and act, and how to speak clearly. Not only should they wear neat and appropriate clothing, but they should be reminded that white clothing tends to "glow" on camera, small repetitive prints are dizzying, and loud prints are distracting.

Help your witnesses keep intrusive mannerisms in check. For example, if a nervous witness needs to tap his fingers, make sure they are silently tapping on his legs under the table instead of drumming loudly on top of it. There is also no eating, chewing gum or sucking on candies during a video deposition – these habits distort speech.

Be a language and speech coach for your witness and help them become aware of and reduce thinking noises (ummm, aaaaa) with brief, silent pauses. These pauses should last only about two to three seconds, so they don’t become exaggerated and obvious. Advise the witness to speak clearly and slightly slower than normal. It is a good idea to practice these speech patterns with the witness so they become comfortable with them and do not appear forced or stilted. You will not be able to change normal speaking patterns or alleviate distracting vocal habits, but you can minimize them by working with the witness beforehand.

Success lies in the details, some of which may seem like common sense, but can easily be overlooked. Contracting with a good trial technology consultant early in the process will help you ensure that you don’t miss any of the technical details. The consultant will act as producer, director, stage and set designer, lighting specialist and troubleshooter, allowing you to concentrate on conducting a case-winning deposition. A good consultant will know the technology like you know the law, and the combination will produce a superior presentation to the court and the jury.

Part Two

Stan Sandstrom is a long time lead consultant for the trial consulting division for inData Corporation, the makers of the award-winning TrialDirector™ software and providers of a full range of trial technology software, services and consulting. Reach inData at 800-828-8292 or 616-696-6886