Use of video depositions at trial
Ron Miller has a good post on the Trial Lawyer Resource Center blog on "Should Your Bring Your Expert Witnesses Live to Trial?" He makes a number of good points, and I commend it to your reading.
I’ll spare you the buggy-load of jokes about the status of technology when I started practicing law. But up until about a decade ago, we had to get either a court order or a stipulation in order to use a video taped deposition in Georgia state courts. Stipulations and orders often went into stultifying detail about camera positions, zooming, backgrounds, etc. Opposing counsel who wanted to be obstructionist could refuse to stipulate, forcing you to file a motion and get an order from the judge, which of course could take months with some judges. For several years after I switched from defense to plaintiff practice, I made a practice of filing a motion to authorize videotaping of depositions as soon as an Answer was filed so that I would not be stymied when time for taking doctors’ depositions finally came.
When I became chairman of what is now called the Tort & Insurance Practice Section of the State Bar of Georgia in June 1994, I appointed a committee co-chaired by plaintiff and defense lawyers, to work on a legislative proposal to adopt the federal rule on means or recording depositions, including video. It should not have been a controversial point, and it was easy to get consensus once we got folks to sit down and consider what the rule should be. However, an insurance industry lobbyist blocked it the first time it came up in the State Senate Judiciary Committee in 1995, and told me outside the hearing room that doctors who were defendants could come across as [expletive deleted] on a video deposition taken for discovery, and he wanted more opportunity to prepare them to avoid that. A couple of years later, after the court reporters’ lobbyists had assured that stenographic recording would always be required, our amendment to OCGA 9-11-30 passed, authorizing video recording of depositions by notice.
Since then it has become routine to videotape nearly all physicians’ depositions and a great many opposite party depositions. Experience has taught us a few things, including but not limited to:
- Use a reliable videographer who understands setting, lighting, sound control, and can give you video in any format. While it is permissible to run your own camcorder and have the court reporter certify it, I would never take a chance on that false economy.
- Pay attention to backgrounds. Generally a plain background without distractions is best. Many videographers bring a background screen to set up. However, a book-lined doctor’s office with impressive degrees hanging on the wall, or with lots of anatomical models sitting around, can be good too.
- Avoid glare. We spend a lot of money on medical illustrations for doctors to use in explaining their testimony. Videographers should zoom in on the section the doctor is explaining. However, glare from overhead lights or windows can spoil much of the effect. Set up early in the room and check for all sources of glare on exhibits. Adjust blinds, adjust the angle of the easel, etc., to overcome this problem.
- Prepare illustrations with captions on an acetate overlay that can be removed, so that you can avoid the "continuing witness rule" and send the illustration out with the jury. This is not strictly a video deposition point, but it is worth mentioning.
- Get the video deposition produced in DVT format, synchronized with the stenographic transcript. This is compatible with courtroom presentation software such as Summation. Even without Summation, however, it enables you to easily prepare clips of deposition testimony to present at the commencement of the case in chief and in closing, as one can use the deposition of a party — individual or corporation — "for any purpose" at trial. Just as significantly, if opposing counsel objects in the midst of trial to a portion of a video depositions, a DVT video can be redacted on the fly in the courtroom during a recess. I recently had a trial where for the first time in years I was without the assistance of a paralegal who had been at my side for fourteen years, but even I was able to redact an expert video deposition and let opposing counsel review the redactions during the lunch break.
- Think far in advance about the mode of playing back a video deposition in the courtroom. A few courtrooms come equipped with all the latest technology. Most do not. Some are weirdly configured in a manner almost hostile to any use of projectors and screens. Recently I had a trial in Alabama in a courtroom that must have seemed like a brilliant design to an architect who did not bother to consult any lawyers or judges. Sight lines for jurors were, to put it mildly, bizarre. Often we do not even know which courtroom will be in until nearly the day of trial. In the past year I have presented video depositions in at least three different formats – VHS, DVD and DVT — on courtroom TV sets, awkwardly configured courtroom projection systems, and with my own projector and screen through either a DVD player or a laptop computer. I have come to the conclusion that the perhaps the best current technology is to use a lightweight plastic screen that can be placed on counsel table, with a rear projector that can be placed behind it on counsel table (my next technology purchase), and playing a DVT through a laptop computer. It’s best to have a competent assistant handling the technology, but in a pinch a reasonably competent lawyer can handle it.
- Above all, remember that Murphy’s Law is in full force and effect. If anything can go wrong, it probably will. Before you spend thousands of dollars on fancy graphics, or to bring a professional crew across the state to handle your courtroom technology, think through all the ways opposing counsel, the judge, antiquated courthouse wiring, or cruel fate can throw a monkey wrench in your finely tuned machine. Always have a backup plan, a backup system for replaying a video, an extra power strip, and an extra long extension cord.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, former chair of the of the Southeastern Motor Carrier Liability Institute and Georgia Insurance Law Institute. He particularly focuses on cases arising from truck and bus accidents. Click here for a free consultation with no obligation.