Tutorial: The Ultimate Video Deposition Skinny, Part One

updated 29 January 2003

The Ultimate Video Deposition Skinny, Part One
an article by Paul Tauger

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, doing 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 personal injury lawyer. I really can’t speak for what a P.I. lawyer might prefer at a deposition, but what I describe here is definitely representative of big-firm practice.

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.

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).

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. So what follows is what I require from the videographers that I hire (and I work with videographers from all over the country in a variety of jurisidictions).

Simple backgrounds only! No law books, no paintings, no white walls (they can bloom on poorly calibrated court room monitors). Either a neutral gray backdrop, or a simple “textured” backdrop. Most of the videographers I work with bring a backdrop roughly 4′ x 6′ which is on a spring metal frame, and can fold or 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.

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 flourescent lighting, adjust white balance to correct it.

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 the camera down 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 that 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 Exhibt 4 so that we may see what Mr. Witness is indicating.” And 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 filmmaker. 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 much 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.

Everybody gets a microphone. 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 mic those expected to speak, i.e. the lawyers and the witness. I require that anyone present (except the court reporter) be mic’ed. This means, at least, a pressure zone mic (PZM) 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, which should have been caught on the record, but the PZM didn’t pick it up. This can sometimes mean an awful lot of mics, 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.

Here’s a 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. An inexpensive lav will deliver adequate quality for deposition work and won’t break you if it disappears.

On to Part Two…

Written by Paul Tauger.
Thrown together by Chris Hurd

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