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Frequently Asked Questions about Deposition Videography

  1. Why videotape a deposition?
  2. Who hires the deposition videographer?
  3. How is deposition video used in trial?
  4. What is “Impeachment”?
  5. Are deposition videographers certified by state or federal government?
  6. Can a deposition be taken with a videographer instead of a court reporter?
  7. What depositions require a videographer to be a notary public, and why?
  8. Can deposition video be used at trial instead of live testimony?
  9. How should a witness prepare for their videotaped deposition?
  10. Can deposition video be edited?
  11. What is the standard format for deposition videography?
  12. What is deposition synchronizing?
  13. What is DepoView?

 

 

Answers:

  1. Why videotape a deposition?

An attorney may want to videotape a deposition to preserve the testimony in case the deponent dies, becomes too ill, flees or otherwise is unavailable to testify in court. The law in some jurisdictions allows for certain expert’s testimony to be presented by video, even if they are available to testify in court in person.

Also, video deposition testimony may be used to impeach a witness if they change their testimony at trial, and this is by far the most common use of deposition video in court. Seeing the witness make an unambiguously different statement on the video than what they said in court has a much greater impact than simply reading back transcript testimony.

One surprisingly common reason for hiring a videographer is for the calming effect it has on disruptive attorneys and litigants. People are on better behavior when a videographer is recording the event, and this can mean the difference between a two-day and a one-day deposition.

Also, and not least, video can provide better insight into deposition testimony for expert consultants and legal staff reviewing it, as they prepare to go to trial.

  1. Who hires the deposition videographer?

The videographer may be hired by any attorney who is a party to the case and/or deposition, although it is usually the same attorney who set the deposition and hires the court reporter.

  1. How is deposition video used in trial?

Deposition video can be presented in two ways.In the case of an absent witness, video is presented in lieu of their live testimony, with objections and disallowed questions edited out.

In the case of impeachment, particular segments are selected for presentation; a fraction of the whole deposition. These are often referred to as “excerpts.” Sometimes these segments can be anticipated, but often they are determined in court, when a witness unexpectedly alters their testimony. In cases like these, synchronized deposition video is especially useful.

Finally, there are cases with a huge number of witnesses, in which only a fraction of the testimony will be needed for trial. Often a judge orders or parties agree that those segments of the deposition video will be used instead of recalling all the witnesses.

  1. What is “Impeachment”?

Impeachment is challenging the authenticity or accuracy of a witness’s testimony by presenting contrary evidence. Often this is done with the witness’s own deposition video clip in which he contradicts himself, or gives an opposite answer to the same question that’s being challenged. Having synchronized video of every deposition comes in handy. A synchronized deposition allows you to search a transcript, find the relevant section, clip it, trim it and present it in a few minutes - or less!

  1. Are deposition videographers certified by state or federal government?

No; however in some states, like California, the code of civil procedures dictates that a deposition videographer must be “authorized to administer an oath,” i.e. a notary public (or a certified court reporter, judge, court bailiff, etc.) for certain types of depositions.

You may see some videographers advertising themselves as “Certified” by some organization, but this is a purchased certification, acquired after completing some minimal amount of training and paperwork. It has no court status at all, and is no indication of the videographer’s experience.

  1. Can a deposition be taken with a videographer instead of a court reporter?

Yes, however I wouldn’t advise it. A written transcript will almost always be needed anyway. When transcribing from a recording, portions are often unintelligible, no matter how many times one replays it. And the transcriber can’t ask the witness’ video to repeat what they said. Nothing is better than having the court reporter there at the time to get clarifications, along with video to preserve the true meanings.

Yet, there are times when a video is the only method available to take a deposition. Sometimes this will occur when a scheduled court reporter has been unable to attend and a replacement can’t be found in time. If both sides stipulate, this can be done, although it would help if the videographer is a notary public, so someone can swear in the witness. Without a swearing-in, there’s no deposition.

  1. What depositions require a videographer to be a notary public, and why?

Every state has different laws; you’ll have to check your local code of civil procedures. However, in California, the relevant section of CCP 2025 states that any video of a treating physician or expert witness taken with the intention of using it in lieu of live testimony must be videotaped by someone authorized to administer an oath. Being a notary public satisfies that requirement. The videographer doesn’t have to administer the oath, but he must have that authority. This is why most professional videographers in California are notaries public.

  1. Can deposition video be used at trial instead of live testimony?

Not usually; the law still requires that if a witness is available, their presence is required to give testimony. However, recent rule changes have relaxed that requirement for expert witness testimony. They can usually be excused from appearing upon request, and their video is presented instead. This often requires that the deposition be taken in two parts:, First a “discovery” depo is taken, and then a “Trial Testimony” deposition is done immediately afterwards.

  1. How should a witness prepare for their videotaped deposition?

Except for certain presentation issues, the same way as they should for any deposition. (Keeping in mind, however, that if you choose not to prepare your witness at all, this will be even more apparent on video.) But there are some things that don’t look good on video, cosmetically and behaviorally:

Avoid wearing shirts that are red, white or fluorescent. Avoid tight patterns like herringbone or very small check. Avoid shiny jewelry. Necklaces, floppy collars or dangly earrings can interfere with the operation of the lavaliere microphone that the witness will have to wear. Wear normal glasses or contacts. If the witness only has prescription sunglasses, do something about that.

The witness should sit up straight, as high in the chair as necessary for good posture, and avoid twirling, rocking and rolling. Some sitting habits, although quite innocent, can look glib, flippant, unintelligent or sarcastic on camera. Having said that; being relaxed, leaning back once in a while, and shifting position every now and then is just fine. The idea is to be personable and normal on camera.

Remember that you’re wearing a microphone! Don’t mutter or curse under your breath. Don’t play with the wires, click your ball-point pen or crumple candy wrappers next to the microphone.

Do not look directly into the camera; it’s creepy and comes off as phony. Only news anchorpersons can look directly into the camera and get away with it.

  1. Can deposition video be edited?

Deposition video is usually edited down to just those segments (or “excerpts”) that someone wants shown. Even in the case of video testimony presented in lieu of a witness’ appearance, objections and overruled questions are edited out before it is presented.

  1. What is the standard format for deposition videography?

A new video format is added to the video industry every few years, so there is no official standard, except in cases where a particular state has declared that a certain type of tape be lodged with the court. In such cases the tape format required is usually VHS, which tells you how long ago the rule was enacted. VHS used to be a standard delivery format because that was the only way most people could view a video. But there is no rule governing the recording format in any state that I know of. So you still might find some video companies using VHS.

Most videographers record onto a digital tape or a DVD these days, or both simultaneously. Some are starting to record onto hard drives. The delivery format, however, is usually DVD-Video or MPEG-1. DVD-Video is for DVD players, such as we use for movies and such. MPEG-1 is used for viewing on most computers, and for synchronizing depositions. MPEG-1 also has the advantage of being a smaller file size, which means more videos can fit on a computer, and which playback faster and without hiccups. The tradeoff is a picture with a lesser resolution. Most find that, for depositions, the picture quality is not a significant factor.

(I would be interested in a scientific study that compared viewer’s reactions to video of different formats to see if a higher quality format resulted in more favorable impressions. If you know of any, please drop me a line.)

  1. What is deposition synchronizing?

Synchronizing is the process of linking the video file of a deposition to the transcript, so that the transcript scrolls through line by line in synch with the video as it plays. The process itself is performed after the deposition, after a final transcript has been created. It requires some kind of playback software to make use of, such as trial presentation software (like TrialDirector or Sanction), or simple synched depo playback applications such as DepoView. Windows Media Viewer can also playback some synched files if it is properly formatted and the player has the subtitles feature turned on. Some document management software can handle synchronized video also, like LiveNote and Summation, but these are not trial presentation programs.

Synchronizing is useful during discovery by enabling instant playback of the video of any specific portion of the transcript. For trial it allows much faster deposition video editing, and allows instant clip creation on the fly, even in court. Synchronized deposition video is one of the most popular and useful digital presentation tools available to attorneys.

  1. What is DepoView?

DepoView is a relatively small application that plays back synchronized deposition video, allows one to make clips, export clips, etc., and which can also transfer the video and your work to a full-sized trial presentation software. It is available by request at no charge from some videographers, and comes packaged with your synchronized deposition video. For more information, see our DepoView instruction sheet.

 

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info@digitalcasemanagement.com
Need help now? Give us a call at (415) 374-1571

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