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Why and how you need video
deposition ?
(
Paul Tauger-litigation
attorney)
My background: I'm a litigation attorney with 10 years
experience, employed as a senior litigator by a major
international law firm. I am also an advanced amateur
videographer (I do travel videos). I've lost track of the number
of depositions I've conducted, but they're in the hundreds.
Approximately half of them were videotaped. I do intellectual
property litigation -- copyright, trademark and patent
infringement actions. Though deposition procedures and
techniques should be the same, whether it is expensive and
complicated litigation like I do, or more straightforward
personal injury or family law matters, the stakes tend to be
higher for the cases I work on, the fees and costs tend to be
MUCH higher, and the caliber of lawyers I work with and against
tends to be quite different than a sole-practioner PI. I really
can't speak for what a PI lawyer might prefer at a deposition,
but what I describe here is definitely representative of
big-firm practice.
Here are a couple of points:
1. Depositions are almost always taken for only two reasons: to
discover information relevant to the litigation and/or to
preserve testimony for trial. It is usually the latter type of
deposition that is taped.
2. Deposition testimony is presented at trial in one of three
ways: a lawyer can read the transcript to the jury, reading both
the questions and answers (boring!), two lawyers can "play act,"
one in the witness box reading the answers and the other at the
podium reading the questions (only slightly less boring unless
the lawyers have had acting training -- as it happens, I have,
but most haven't). The best way to present deposition testimony
at trial, in my not-very-humble opinion, is by video -- jurors
(and judges) are used to watching television, prefer to watch
television and if, as sometimes happens, the lawyer gets lucky
at the deposition, the witness' reactions to specific questions
are far more compelling than the actual answers given. As an
example, I once got an expert witness to admit at a deposition
that he had committed perjury in a declaration he had previously
filed with the court. When I finally pulled the admission out of
him, he turned bright red, couldn't look me in the eyes, and
with a look of absolute humiliation on his face, admitted what
he had done. And, happily for me and my client, I had taped this
deposition and had his whole performance on camera (we won the
case -- no surprise).
3. With all this in mind, THIS is what's important about a video
deposition: the witness must be seen, clearly and without
distraction, and the lawyers and the witness must be heard
clearly, without distortion. That's all. Here's what I require
from the videographers that I hire (and I work with
videographers from all over the country in a variety of
jurisdictions):
a. Simple backgrounds only!!!!! NO law books. NO paintings.
Either a neutral gray backdrop, or a simple "textured" backdrop.
No white walls (they can bloom on poorly calibrated court room
monitors). Most of the videographers I work with bring a
backdrop roughly 4' x 6' which is on a spring metal frame, and
can fold/coil up into a small bag. They open the bag, the
backdrop pops out, and they lean it on the wall in back of the
witness. Sometimes they'll bring a conventional backdrop and
stands, but these can be cumbersome.
b. No lighting, ever!!!! I don't care if it makes the shot look
better -- I want the witness to forget that he is being taped
(this is true whether I am taking or defending the deposition).
I want the witness relaxed, comfortable and speaking and acting
normally. This means no lights in their eyes, no excess of
production equipment, etc. As videographers, feel free to advise
the lawyer (the one who hired you!) if there are problems with
shadows or reflections -- these can generally be resolved during
the setup by switching seats, etc. If the witness looks green
because of the fluorescent lighting, adjust white balance to
correct it.
c. No camera movement of any kind (with one exception): The
videographer is preparing a court record, not an artistically-lensed
documentary interview. Frame the shot so the witness' face and
upper body is visible. I like to include the witness' hands, as
nervousness will often express itself through hand movements.
Lock in the camera on the tripod. Then don't move! Don't zoom in
on the face at dramatic moments. Don't focus on the hands. Don't
shoot the other attorneys. Do adjust as necessary if the tripod
slips, or the witness makes a dramatic change in position.
However, if the witness starts slumping, don't pan down -- I
WANT the jury to see the witness' loss of confidence as the
deposition progresses. If the witness starts leaning to the
right, or shifting around uncomfortably, don't correct for it,
let the witness lean to the right of the frame, or sway back and
forth -- I WANT the jury to see the witness' discomfort.
Remember, a witness' testimony at deposition is EXACTLY the same
as testifying in a court room before the jury -- the only
difference is there is no judge present to resolve disputes; the
court reporter is the judge surrogate, and will ensure, along
with the videographer, that an accurate record is made so that a
judge may later resolve any objections, evidentiary disputes,
etc.
I always check the videographer's monitor at the start of the
deposition, and then periodically during the deposition. Not all
lawyers do, but expect the experienced ones to do this.
Now, for the exception to no camera movement:
Occasionally I will hand a witness a physical exhibit (that's
lawyerese for a "thing") and ask the witness to explain what it
is, how it works, etc. At that point I will say, "Mr./Ms.
videographer, could you please zoom in on Exhibit 4 so that we
may see what Mr. Witness is indicating." THEN do so -- I'll
watch your monitor to make sure I'm happy with the framing. At
this point, you do become more of a documentary film maker. You
need to listen to the testimony and make sure what you're
shooting is what is being described, i.e. if the witness says,
"The inverter ring is this thing here, and it slips around the
actuator assembly like this," make sure you're shooting the
inverter ring, and the shot is framed so that it shows it
slipping over the actuator assembly. If you missed it, or even
think you missed, feel free to say, "I'm sorry, I think I missed
Mr. Witness' explanation" -- I'd rather have the interruption
than lose this kind of critical demonstrative testimony.
After the witness is through working with the physical exhibit,
I'll say, "Thank you, Mr./Ms. Videographer, we can resume as we
were." And the videographer should go back to the previous shot.
From time to time, lawyers will get into disputes during
depositions. I'm pretty mellow when I take a deposition (it's
calculated -- I like to relax the witness so they'll say things
they don't intend). However, not all lawyers work this way. I've
had instances in which depositions turn positively ugly. And
I've once had a lawyer instruct HIS videographer, "Turn the
camera on Mr. Tauger. I want you to videotape Mr. Tauger." And
the videographer did. Now, in that particular instance, I let it
go -- I was happy to have a video document of the other lawyer's
shenanigans, and he was deposing my witness, so I didn't care if
the testimony was invalidated. However, I will move to strike
ANY video deposition that tapes anything other than the witness
(there are a couple of rules of evidence that support this). Of
course, the bottom line for the videographer should always be
this: do what you're told by the lawyer who is paying your
bills.
d. Everybody gets a mike. Who may be present at a deposition is
limited by law: parties (and officers of corporate parties),
their counsel, their counsel's staff, the court reporter, the
videographer, translators and, of course, the witness -- that's
the lot. Many videographers only mike those expected to speak,
i.e. the lawyers and the witness. I REQUIRE that anyone present
(except the court reporter) be miked. This means, at least, a
pressure zone mike on the table, as well as lavaliers for the
attorneys and witness. However, I'm happier if everyone has a
lavalier; I've had instances where adverse parties were talking
among themselves and disturbing the witness -- this should have
been caught on the record, but the pzm mike didn't get it. This
can sometimes mean an awful lot of mikes, as well as a large
mixer, if there are multiple parties, the depo is translated,
etc. I always tell my videographer when there will be an unusual
situation like this, but it's a good idea to ask.
Hint: buy cheap lavaliers. Witnesses and inexperienced lawyers
have a nasty habit of forgetting they're wearing one, and
getting up and walking away from the table, destroying the mike
in the process.
4. About equipment: Here's my opinion -- The standard camera for
deposition videography is a Panasonic AG-456 (or, if budget
was/is an issue, a 455) or equivalent. An SVHS tape goes in the
camera for backup, and the output of the camera goes to an SVHS
vcr for the master. Audio for the master comes from the mixing
board. Audio for the in-camera backup comes from the on-camera
mike. A separate audio cassette is made from the mixer feed. A
stand-alone, small (5") video monitor takes its feed from the
output of the vcr. The camera is, of course, on a tripod.
This is the _minimum_ gear I consider appropriate for deposition
videography. I won't hire you again if you don't have backup for
video and audio. Depositions are one-shot deals -- they can't be
redone, and are critical. With the setup I've outlined, you have
multiple, independent video and audio records, and will always
have a backup if something goes sour.
A note about digital cameras: I don't like 'em for depositions
for a couple of reasons. First, SVHS gives me 2 hours per tape,
DV only one. I don't like to interrupt the flow of the
deposition to change tapes too often. However, my primary
concern is that digital video is too easily doctored. If
authenticity ever becomes an issue, an analogue master can be
verified by expert analysis, a digital master cannot.
5. Who's the boss? I don't use "trial consultants" like the
author of the website (who, apparently, is NOT a lawyer). I have
a litigation support department in my firm that helps prepare
trial exhibits and provides support as I direct. I have
associate attorneys that work under my direction, and assist me
with depositions and trials. I prepare my own witnesses. I pick
my own juries. I select my own expert witnesses. My firm bills
me out at a fairly obscene hourly rate because my firm and my
clients rely entirely and exclusively on my judgment. And I've
never lost a trial. With that said, the last thing I want at a
deposition is a wannabe Francis Ford Coppola videographer. On a
few occasions, I've gotten into arguments (short-lived for
obvious reasons) with videographers about camera placement -- I
like the camera slightly off to the side, shooting over my left
shoulder -- I do NOT want the camera shooting directly across
from the witness, with ME off to the side. The reason for this
is simple: I want the witness to talk to me, not the camera. I
want them to look into my eyes, and I want to look into theirs.
An important part of what I do is guide the witness (some might
prefer the word "manipulate") so that I get the testimony that I
need in the form that I need it. To do this, I want _nothing_
coming between me and the witness. I don't care if the
videographer thinks it will look better with the camera one
place or another -- _I_ decide where it goes, and I'll live with
the results. The three videographers who didn't like my opinion
about camera placement don't do depositions for me any more. In
one case, the videographer was fired on the spot and another
videographer was sent out to replace him.
It's critical to remember that, from start to finish, it's the
lawyer's behind that's on the line -- if my client wins, it's my
doing. If my client loses, it's my doing. I'm the director, the
producer -- I am god -- of the deposition.
Which brings up another point that no one will ever tell you
about, until it actually happens. As I said, most depositions
are pretty mellow, even boring, events. Occasionally, though,
some lawyers get out of hand -- it may be because they are
abusive (sadly, this is becoming more frequent), or because they
have given an improper and/or illegal instruction to their
client/witness. I have, on several occasions, had to terminate a
deposition before it was over. As a matter of law, this means
suspending the proceeding and taking the dispute before a
magistrate judge (which sometimes can be done on the spot with a
phone call, though usually requires a separate court hearing
weeks later). When I say, "This deposition is over -- please
close the record," I'm not kidding. I expect the videographer to
take us off the record and the court reporter to close the
transcript. I do not expect to be ignored, argued with, or
asked, "are you sure?" Again, all responsibility lies with the
attorney -- if he/she takes this drastic step, just follow
instructions, pack up and leave with him/her.
6. A word about editing: For me, it's very simple -- the
videographer will never have to do any editing, and will only
provide certified copies and the complete video master. If I
want "testimony excerpts" prepared, I'll either have it done in
house (or even do it myself), or send it out to a production
house (there's no reason why the videographer can't also provide
production services, but these are two entirely separate
activities). However, most times, I will want the video
transcended to mpeg1 and placed on VCDs, which are linked to the
ASCII text of the deposition transcript. I've already discussed
how lawyers can put depositions before the judge or the jury. I
didn't mention the mechanics of evidence introduction for
depositions. Simply, the lawyer says, "Your honor, I would like
to read from the deposition of Mr. Smith, at page 14, lines 18
through 24." The lawyer then pauses, while the opposing counsel
looks at the portion of the record referenced and raises any
relevant objections. If there are no objections, the lawyer can
then proceed with placing the referenced section of the
deposition on the record. With the latest technology, available
in litigation support programs like VideoNote and Summation, I
can now say, "Your honor, I would like to SHOW the jury Mr.
Smith's deposition at page 14, lines 18 through 24." After the
review and objections pause, my litigation paralegal can then
place on the court room TV monitors the exact question and
answer from the video deposition -- the software finds the right
spot on the VCD and then plays it. For this reason, I rarely, if
ever, do a video deposition excerpt tape -- it simply isn't
necessary. I'll only do it if I'm confident I will need only one
single section from a deposition (and this is very rare, since
deposition testimony is extremely useful for impeachment).
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