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Strategic Use of Video Depositions
Andre M. Lagomarsino, Esq.
Published in the June 2003 edition of the Nevada Lawyer
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Strategic Use of Video Depositions
Andre M. Lagomarsino, Esq.
Published in the June 2003 edition of the Nevada Lawyer
There is no doubt that we live in a video world. Video cameras are embedded everywhere from the battlefield to the football field. The legal field is no exception. Quite simply, legal videographers assist attorneys in presenting a more compelling case, whether by videotaping depositions, producing settlement documentaries, or assisting in the courtroom.
While litigation is known as "a search for truth," video depositions are used as the magnifying glass in that search. The courts have uniformly agreed that "[d]ue to recent technological advances and diminished equipment costs, videotaped depositions have become a familiar component of pretrial practice . . . ." State ex rel. Bennett v. Keadle, 334 S.E.2d 643, 645 (W. Va. 1985). "The age of the video deposition . . . is upon us." Longo v. Wal-Mart Stores, Inc., 79 F.Supp. 2d 169 (E.D.N.Y. 1999).
There is no question that the proper use of video depositions can only help a litigator's case. The aim of this article is to give the litigator ideas on how to effectively utilize the video deposition in any given case.
The first step is to decide whether a video deposition is necessary. An important issue to determine is whether the witness will give favorable testimony that may be used at trial. If the answer is in the affirmative, the savvy attorney will use a legal videographer to videotape the deposition. Why? Video connects with jurors in ways that a cold transcript cannot. See Longo, 79 F. Supp. 2d. at 172 ("It is recognized that a videotaped deposition is generally more effective than reading a transcript for the presentation of deposition testimony.") The factfinder "directly uses the combined senses of hearing and seeing without the filtering process that occurs when one listens to a deposition being read from the cold record which excludes pitch and intonation of voice, rapidity of speech, and all the other aural and visual clues." Rice's Toyota World, Inc. v. Southeast Toyota Distributors, Inc., 114 F.R.D. 647 (M.D.N.C. 1987) (allowing the plaintiff to video record all of the depositions in the case). Most importantly, use of video at trial decreases the chance that most jurors, who are accustomed to receiving information in visual form, will become bored and lose interest in the case.
After deciding to videotape the deposition, the attorney must choose a qualified, certified videographer. Videotaping a deposition is much more complicated than pointing the camera at the deponent and pressing the "record" button. Video depositions, like televised presidential debates, are subject to the highest standards of production. Video depositions can be excluded for, among other reasons, the following: biased lighting; inappropriate backgrounds; poor sound; failure to log objections and colloquies; and failure to maintain the original video tape. Choosing a legal videographer who is certified by an organization such as the American Guild of Court Videographers, a nationally recognized organization that teaches videographers the proper legal and production rules and standards, will increase the chance that the videotape or clips therefrom will be admitted at trial. The quality of the videographer directly corresponds to the quality of the product.
Like former President Kennedy in the first televised presidential debate of 1960, the prudent attorney should consider both issues and appearances in preparation for the video deposition. The following tips will assist the attorney in this regard:
. Avoid clothing will small patterns, stripes, or checks to avoid a shiny effect. Small lines and patterns are difficult for video to capture.
. Avoid wearing red because it is an unbecoming color on tape. Because of television's limitations, strong colors such as red have a tendency to smear. Neutral and midrange colors will ensure a clear picture.
. Avoid extremes such as black and white (unlike the presidential debates which were filmed in black and white).
. Use a room with an uncluttered background. Books lend credibility to the witness. Use a neutral backdrop, if possible.
. Mark exhibits out of the camera's view. Use models, photos, charts and anything that will help illustrate the desired point.
When addressing the witness, the attorney should try to be as concise as possible, given that many viewers are accustomed to seeing or hearing something new every few minutes.
After the deposition has been concluded, the videographer takes possession of the original tape and quickly provides copies to the requesting attorneys. Now what?
In the time between the deposition and trial, the videography company can be retained to produce a succinct, yet effective settlement documentary. Settlement documentaries drive home the lack of merit in any particular case. Some documentaries emphasize the plaintiff's damages (e.g., burns, quadriplegia, coma), while others clearly demonstrate the inconsistencies in opposing witness testimony. Despite the concise nature of the documentary, the production process can be time-intensive. At a minimum, the attorney should (1) select the testimony from the deposition transcript; (2) view each video clip that may be used; (3) designate the video clips to be used; and (4) reviewing the final product prior to showing the opposing side. Technology, while convenient, is no substitute for hard work. This process should be followed to protect against errors that could potentially detract from the video's desired effect, which is to give the opposing counsel a preview of what will be seen at trial if they don't come to their senses and resolve the matter. If the skillfully produced settlement documentary is not enough to convince opposing counsel to settle, the next step is trial.
Prior to utilizing any technology in the courtroom, counsel should get prior court approval for the type of presentation that he or she wishes to present. If the courtroom is not pre-wired for the presentation, the attorney should utilize the services of an experienced videography company that can set up the courtroom in the proper fashion. The attorney would be well-served to use a company that already owns the equipment to ensure that the videographer is well acquainted with the equipment and, most importantly, to guarantee a seamless presentation. As a result, the factfinder can view the evidence as clearly as possible and in the light desired by the presenting attorney.
Video is used at trial to establish the necessary components of any particular case. See Rimsky v. Snider, 701 N.E.2d 710, 712 (Ohio. App. 1997) (Upholding trial court's decision to allow a second videotaped deposition of physician "in order to establish causal connection between the [medical] bills and the automobile accidents . . . ."). Video is commonly used in construction defect cases, where video documentation of the site in question has become a persuasive tool for both plaintiffs' and defendants' counsel. As demonstrative evidence, "day-in-the-life" videos have been commonly admitted as probative evidence to prove damages including, but not limited to, a plaintiff's physical and mental condition, progress, and medical treatment. See Colon ex rel. Molina vs. Bic USA, Inc., 199 F.Supp.2d 53 (S.D.N.Y. 2001) (child's burns). A new trend among attorneys is to present the jury with split-screen video deposition testimony. The procedure includes taking video deposition excerpts and showing the footage to the jury by utilizing digitized video, DVD, or a PowerPoint presentation. Juries respond to this type of presentation because they are able to see witnesses testifying about each other at the same time, without rewinding or switching between screens as would be required with a traditional video format. Another effective split-screen presentation is to show inconsistent "flip-flop" testimony from the same witness. The digitized format is the key to quickly moving between various excerpts.
Modern attorneys have also found favor with judges and juries by trying cases with very little paper, if any at all. A skilled legal videography company should be able to load an entire case into a single laptop computer and project it onto a screen at the attorneys' direction. Laptop litigation allows attorneys to point and click to an enlarged exhibit on an interactive screen, instead of fumbling around with papers and folders. The act of carrying loads of banker boxes to court is no longer necessary. Trial attorneys are well aware that the typical juror's ability to understand complex information is limited at best. While attorneys must continue to utilize themes and messages during the course of any trial, showing evidence to the jury in the medium to which they are most accustomed, video, only enhances the attorney's ability to persuade the jury. "Seeing is believing."
The writer is a Nevada attorney and co-owner of Las Vegas Legal Video.
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