Video Depositions: Attorney Requests and Incorrect Assumptions
I’ve been thinking about the many requests or issues that come up during depositions between attorneys and legal videographers. As a videographer, I know I, along with fellow videographers, can be guilty sometimes of assuming that attorneys know the rules videographers live by and the reasons behind those rule. I want to address a few of those requests and issues that come up from time to time in a deposition setting.
When attorneys hire a legal videographer, they have a specific expectation of what they need during the deposition. This is great, but if the ordering counsel is needing something done out of the ordinary, it’s good to have that information known at the time of scheduling, or at least before the day of the deposition.
One request that has come up in the past that I want to touch on is when an attorney has the expectation that the legal videographer can videotape more than just the deponent in the room.
The request is usually to zoom out and get multiple people, whether it be the family in the room, opposing counsel, or even other clients present during the deposition. Whatever the reason for needing this, videographers simply cannot fulfill this request. If this request was as easy as adjusting the camera and zooming out so everyone was in the shot, videographers would do so. But it’s not that simple.
You might ask why not. What’s the big deal? After all you noticed the deposition for video and it’s your video. Well, not exactly. This video will be available to all the parties and as such must be done correctly. I have written before about the various code sections in the California Code of Civil Procedure, but legal videographers also have a set standards or best practices that should be followed for an accurate and precise video record that was written and created by the National Court Reporters Association. This group certifies not only court reporters but also videographers all over the country. There are 62 Standard Rules that this group strongly recommends legal videographers follow. These rules are essential for keeping all videographers great at their jobs and keeping all videotaped depositions looking consistent so anyone can use the videos for trial, if need be. Believe me when I say that videographers really want to accommodate their clients and help them the best they can.
There are two standards that refer and clarify the request I explained above, Standards 23 and 24. These standards state:
The camera shall be positioned on a level tripod, and the lens barrel shall be at a height which is near to eye level of the deponent. The videographer shall position the camera in such a way so as to provide a clear view of: the deponent's face and hand during oath or affirmation, the presentation of exhibits or documents such as x-rays, charts, diagrams or models, and the deponent and at least a portion of the document from which the deponent is reading.
A simple and maybe obvious solution to a request for filming more than just the deponent, exhibits, et cetera, would be to shoot with two cameras and possibly having two videographers present. Many legal videographers would not carry extra equipment, so this is why the ordering firm would have to request this when scheduling or well before the deposition. It would give the videographer plenty of time to schedule and prepare for the deposition and the request.
We have to remember that the videographer’s main priority is to capture the deponent and get clear audio all while following those 62 Standard Rules. I would venture to say two videographers would be a must to make sure everything flows accordingly in this type of instance. There would be one video produced for use at trial and another video to address the other request.
Something else that comes to our attention that we assume attorneys know is when we can and cannot go off the record.
Standard 48 states:
In the event that requests to go off the record are disputed by counsel, the videographer shall continue recording the deposition until agreement by all counsel.
Let’s say two attorneys are disagreeing, one counsel requesting to go off the record or one attorney decides to stand up and walk out without saying anything to the court reporter or videographer. These instances happen more often than attorneys may realize. It is the videographer’s job and duty to stay on the record until both attorneys/parties agree to go off record. We want to make sure we are getting the same accurate record as the court reporter beside us. In this instance, videographers cannot assume anything and there needs to be a clear communication between parties, the court reporter, and the videographer.
Hiring a legal videographer, you would assume, it’s a simple hook-up, the videographer has a read-on and then they press “record.” Surprisingly there is so much more to it. It’s important to all the people in the room, the litigants and the attorneys, that the videographer is properly trained for depositions and follows the appropriate rules and standards.
If you have any questions about videotaping your next deposition, we are here to help. Just contact us at (800) 322-4595 or email me at [email protected]. You may be interested in 5 Reasons You May Want to Videotape Your Next Deposition.
5 Tips for Booking a Court Reporter for Your Next Trial
There have been so many changes in recent years in the California civil courtrooms with the availability of a court reporter. Although some of the courtrooms do provide court reporters for hearings of less than two hours, many require the attorneys to hire an outside court reporter for the longer hearings or for trial. We find that most of our civil clients do want to have their trials reported, and this can sometimes be a challenge if they are not booked well in advance. As background, many reporters will not work in court and many are not yet approved so there is a limited number of reporters available.
Tip No. 1
Call early to book and provide the reporter/firm with the courtroom, judge’s name, and the names of all the attorneys involved.
Once you have a date for your trial, call your trusted reporting firm or contact a reporter on the list of approved reporters. Most counties do have a list on the Superior Court website, but they can be dated where some of the reporters listed are no longer in the area or no longer available for handling trials.
We all know that most trials settle. That being said, if it does not, you do not want to be scrambling at the last minute to find a reporter who can handle the case for, say, the next two weeks. Most reporters are booked days or weeks ahead, and a last-minute call for a two-week trial may not be doable.
Once you have booked the reporter, I suggest you provide the reporter/firm with the full case caption, the department and judge’s information, and a list of all the parties/attorneys involved.
For the reporter/firm to be prepared, some judges require realtime and others do not. Most reporters/firms that work in those courtrooms on a regular basis know what the judge expects. This information at the time of booking allows the firm to best match the reporter(s) to the trial.
There are financial considerations, and knowing the parties and attorneys involved will help put things in place. For instance, are the parties splitting the cost of the court reporter? Most of the time when we ask this question, it has not yet been discussed. This is something that is best decided before the beginning of trial so appropriate funds can be deposited with the court reporter.
Tip No. 2
Decide if you will need a realtime feed and/or roughs. And if so, who else on your team will need them as well?
Receiving a realtime feed from the reporter or getting emailed a rough at the end of the day can be a great tool in trial for litigators. By booking your trial early, the reporter/firm can reach out in advance and determine the needs of not only your office but opposing counsel. For instance, for realtime, some attorneys may prefer to use their own laptop while others would like the reporter to bring an iPad or laptop for them. For roughs, some of the members of the litigation team may also need a copy of the rough that is being sent out at the end of the day. Email addresses can be collected ahead of time. These things can be worked out well in advance so everyone is prepared. I know as a reporter there is nothing worse than interrupting a busy litigator to ask these questions during trial.
Tip No. 3
Let the reporter/firm know if you anticipate needing dailies during trial.
If you think you may need dailies during a trial, letting your reporter/firm know ahead of time is a must. We know this may change as the trial proceeds, but having a heads-up that it is a possibility can make a difference. The reason being is that depending on the length of the trial, the subject matter, et cetera, having dailies ordered during trial may require a second reporter or additional scoping assistance for the assigned reporter.
Tip No. 4
Decide if it is necessary to have jury voir dire reported or not. If so, would you need it with or without realtime?
Jury voir dire is one of the toughest assignments for a reporter and is rarely ordered in an appeal, but it can be very important to have it reported. This is just another area where it is helpful for the reporter/firm to know before the day of trial.
Tip No. 5
Provide the reporter with some preparation material, such as witness and exhibit lists.
Reporters who report trials really appreciate the opportunity to review motions, case citations, word indexes, et cetera. If you are using a trusted reporting firm and they have reported some of the depositions, those can also be easily shared as well with the reporter assigned to the trial. If the reporter has this type of information, it is helpful in building the reporter’s job dictionary for the trial. What that means for the judge and attorneys is that as the reporter sends a realtime feed, the transcript is cleaner and easier to read. If the reporter is preparing dailies, this also allows the reporter to produce the final transcript in a more expeditious fashion.
In closing, so many times reporting firms are called the Friday before trial when it becomes apparent a case is not going to settle. Although your trusted reporting firm, I assure you, will move heaven and earth to cover the trial, it would be less stressful for all concerned to have booked much earlier and to have provided all the information necessary. And you would hate to not be able to find an available reporter or for that reporter to not be able to provide what you need during trial. If the case ends up settling the Friday before trial, so be it. In the legal world, we are all very accustomed to the fluidity of our calendars.
If you are heading to trial and need video clips, you may want to read Video Deposition Clips at Trial: California Code of Civil Procedure 2025.340(m) & 2025.620.
(I do want to thank and acknowledge Shelly Hunter of Hunter + Geist and Jim Connor of Connor Reporting who contributed on this subject during a presentation to a group of paralegals earlier this year.)
Video Deposition Clips at Trial: California Code of Civil Procedure 2025.340(m) & 2025.620
Before I start rambling on why making clips is so easy and great for trial, it is important to be aware of the California Code of Civil Procedure that pertains to video clips and the use of them during trial. We have heard from many attorneys that having these clips for trial has had a huge impact on the outcome of their case. I mean, how would it not?! How would a jury react when they watch that pivotal moment in the deposition where a pregnant pause in his/her testimony said so very much.
So with this in mind, there are two CCP codes I want to concentrate on, 2025.340(m) and 2025.620 regarding video clips used at trial. There are quite a few sections that go with CCP 2025.340, but for the purpose of this blog, I am only focusing on those areas in the code and how to create clips yourself.
California Code of Civil Procedure 2025.340(m).
(m) A party intending to offer an audio or video recording of a deposition in evidence under Section 2025.620 shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered. That notice shall be given within sufficient time for objections to be made and ruled on by the judge to whom the case is assigned for trial or hearing, and for any editing of the recording. Objections to all or part of the deposition shall be made in writing. The court may permit further designations of testimony and objections as justice may require. With respect to those portions of an audio or video record of deposition testimony that are not designated by any party or that are ruled to be objectionable, the court may order that the party offering the recording of the deposition at the trial or hearing suppress those portions, or that an edited version of the deposition recording be prepared for use at the trial or hearing. The original audio or video record of the deposition shall be preserved unaltered. If no stenographic record of the deposition testimony has previously been made, the party offering an audio or video recording of that testimony under Section 2025.620 shall accompany that offer with a stenographic transcript prepared from that recording.
California Code of Civil Procedure 2025.620.
At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition and did not serve a valid objection under Section 2025.410, so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following provisions:
(a) Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the deponent as a witness, or for any other purpose permitted by the Evidence Code.
(b) An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section 2025.230 of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing.
(c) Any party may use for any purpose the deposition of any person or organization, including that of any party to the action, if the court finds any of the following:
(1) The deponent resides more than 150 miles from the place of the trial or other hearing.
(2) The deponent, without the procurement or wrongdoing of the proponent of the deposition for the purpose of preventing testimony in open court, is any of the following:
(A) Exempted or precluded on the ground of privilege from testifying concerning the matter to which the deponent’s testimony is relevant.
(B) Disqualified from testifying.
(C) Dead or unable to attend or testify because of existing physical or mental illness or infirmity.
(D) Absent from the trial or other hearing and the court is unable to compel the deponent’s attendance by its process.
(E) Absent from the trial or other hearing and the proponent of the deposition has exercised reasonable diligence but has been unable to procure the deponent’s attendance by the court’s process.
(3) Exceptional circumstances exist that make it desirable to allow the use of any deposition in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.
(d) Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340.
(e) Subject to the requirements of this chapter, a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced.
(f) Substitution of parties does not affect the right to use depositions previously taken.
(g) When an action has been brought in any court of the United States or of any state, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the initial action may be used in the subsequent action as if originally taken in that subsequent action. A deposition previously taken may also be used as permitted by the Evidence Code.
So what is a clip? And how do we create clips?
First, let’s focus on what we mean by “clip.” In the legal world we usually know it is being created from a videotaped deposition and, of course, happening post deposition. I recently addressed this in another blog, Synchronize or Not to Synchronize a Video Deposition? A clip is a small segment of the video deposition, no matter how short or long. You are not editing or removing anything, just cutting down the video deposition into smaller video segments. It typically starts what a question from an attorney and ends in an answer from the deponent.
There are multiple ways to create clips once you have received your synchronized video deposition. Some of the most popular software in the industry used for creating clips are DepoView, YesLaw, and Trial Director. For this blog, I will only refer to DepoView, the most popular, and how to create clips from a synchronized video provided from your trusted videographer. You will know that your video is synched through DepoView as this will display when you open the file.
First, you’ll need to download a free version of DepoView. It’s fast and easy and you can keep it right on your desktop for easy access. Open up DepoView and bring up the video deposition, most likely from a DVD or thumb drive, and it’ll look like this.
Select the Hi-lite icon that is circled above. You would then click on the page and line number you want to start on and drag down until you decide where you want the clip to end.
Select the Clip icon, what I have circled in the above photo. Once the new screen opens, it’ll appear like this below.
You have all the regular functions of Play, Stop, and Rewind. It is important to listen to the beginning and the end of the clip so you know the first words and the last words are on the audio. If you want to add or remove time, you will need to edit the clip. By doing this, you will select the Edit icon that is circled above.
To add additional seconds or remove seconds on the clip either at the beginning or the end, you will press one of the four buttons I have circled above. This will add/remove 1 second to the clip. Shift + one for those four buttons will add/remove 1/10 of a second. Such a great tool for creating clips!
You can listen and edit as much as you please. When you are all set and done, select Save at the top of the screen. This will take you to your list of clips where you get the option to rename it.
If you want to create more clips, select Done, and start the process over with the Hi-lite icon. To get back to your clip(s), select the Clips tab at the top left, then select Show Clip List.
When you are ready to export from DepoView, select the Export icon at the top of the clip list and it will appear like the photo below.
You will have several options on where to export: export to a folder, email to a recipient, use for a PowerPoint presentation or for TrialDirector Case. Depending on how you want to export the clips, the following options will change once you decide and select Next.
However you decide to use your clips, below is how it will appear to someone who is watching it on a laptop.
Utilizing these instructions and getting the most out of your synchronized video depositions will not only change your trial presentation, but will greatly impact your case for the better. You may have better control over your case when the viewer can perceive the person on video rather than reading their testimony and/or save you money with expert witnesses that cannot make it to trial. Whether you’re showing the clips to your clients or colleagues or showing the clip to the jurors, you have the capability to choose the moments you want to share.
If you have any questions about this, feel free to contact us at (800) 322-4595 or email me at [email protected] To learn more about our video services, view our All Things Video page at www.woodrandall.com.
In another related article, we discuss Synchronize or Not to Synchronize a Video Deposition?