Tutorial: The Ultimate Video Deposition Skinny, Part Two

updated 29 January 2003

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

About equipment: Here’s my opinion — the standard camera for deposition videography has always been the Panasonic AG456 (or, if budget was an issue, an AG455) or equivalent. A S-VHS tape goes in the camera for backup, and the output of the camera goes to an S-VHS VCR for the master. Audio for the master comes from the mixing board. Audio for the in-camera backup tape comes from the on-camera microphone. A separate audio cassette is made from the mixer feed. A small (5″) stand-alone video monitor takes its feed from the output of the VCR. Of course, the camera is on a tripod.

This is the bare minimum gear I consider appropriate for deposition videography. I won’t hire you again if you show up without backup for video and audio. Depositions are one-shot deals… they are critical events which can’t be redone. With the setup I’ve described, you have multiple independent video and audio recordings, and will always have a backup if something goes sour.

A note about digital cameras: I don’t like them for depositions for a couple of reasons. First, S-VHS gives me two hours per tape, but DV only one hour (unless you have a DV camcorder which uses full-size DV cassettes such as the Sony DSR250). 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, but a digital master cannot.

Who’s the boss? I don’t use “trial consultants” like some folks seem to call themselves. 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 occassions, I’ve gotten into arguments (short-lived ones 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 to come between me and the witness. I don’t care if the videographer thinks it will look better with the camera in 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, a 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 rear end 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 the 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, often boring events. Occassionally, though, some lawyers get out of hand. It may be because they are abusive (and 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 occassions, 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 magisgtrate 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 or she takes this drastic step, just follow instructions, pack up and leave with them.

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 transcoded 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, but 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).

Preparing synced video like this does not, to the best of my knowledge, require time code. The linkage is done manually, line-by-line, once the video is transcoded to MPEG1.

I hire videographers through court reporting services. These are “one stop” contractors who will provide a court reporter, a videographer and, if I’m out of town and don’t have a local counsel, an office in which to take the deposition (though often I’ll use conference rooms in hotels for this purpose). I don’t hire videographers directly (well, I do on very rare occassions, and they’re always people I’ve worked with before — I always ask for cards from the videographers that I’ve liked and keep them on file). The major services, which are nationwide, include Esquire, Barkley and Legal Link.

I suspect it’s simply a matter of contacting the court reporting sevices in your area, providing a resume, and getting on their call lists. Be aware, though, that there are certain things that a videographer must do, beside actually make the physical video record. The videographer must caption the deposition — it’s a fairly simple script that identifies the matter, the location, the videographer, the witness, the attorneys, etc. There’s “magic language” for this, but it’s easy to get, and quite straight forward. The videographer also has to track remaining time, provide notice (via cue cards) to the attorney that five minutes of tape remain, then one minute, etc.

I understand there are a couple of entites that purport to be “certifying” agencies for videographers. To the best of my knowledge, unlike a court reporter, there is no requirement for certification — at least in any of the courts in which I practice, e.g. all the federal courts in the United States, and the California state court. However, certification may be a sufficient credential to get you started with a court reporting service.

As for contacting lawyers directly, that wouldn’t work for big firm practice, though it might for solo practioners. I suppose it depends on how often they take depostions, since scheduling could be an issue.

Okay, sorry to go on so long about this, but I thought some people might find it useful to hear it from the horse’s mouth. This is by no means a complete discussion of what a videographer should or should not do during a deposition, but covers the major points.

Back to Part One.

Written by Paul Tauger.
Thrown together by Chris Hurd

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