From LitigationWorld, a TechnoLawyer weekly newsletter:
"Congratulations to Ted Brooks of The Court Technology and Trial Presentation Blawg on winning our LitigationWorld Pick of the Week award: Tips for Using Video Depositions at Trial"
There are several ways in which deposition video
designations may be used in trial. The first and perhaps most frequently used
technique would be using it for impeachment purposes. When compared with
reading back some testimony of a solid impeachment, playing that same section
as a “clip” can easily pack twice the punch. After explaining the deposition
process and that the witness was under oath during the deposition as well as
now in court, watching the same person tell two different tales can immediately
cause jurors to seriously consider the credibility of the witness. I have
actually seen the demeanor of a confident witness change when they have to face
themselves on the big screen – and then face the jury.
Another common reason for using deposition
video is the absentee witness. If, for some reason a witness is unavailable to
testify “live” during trial, their depo may be used. The typical procedure for
presenting the absentee witness is for the party calling the witness to first
mark their designations. Next, opposing counsel marks their
counter-designations, followed by both parties marking their objections to be
submitted to the Court for ruling. Additional steps in the “Meet and Confer”
process might include one party marking their direct, opposing then marking
both counter and cross, and then the other party marking rebuttal designations.
Once the Court has ruled, the resulting
designations are generally played back in the order they occurred during the
actual depo, regardless of which party has designated what. Otherwise, one
party could get left with little more than a bunch of “sound-bites” with no
real context. To play them with the added context could result in playing portions
of the depo twice – probably not the best use of the Court’s time.
In order to make all of this happen, the video is synced to the transcript text,
allowing one to quickly prepare and play depo video, simply by selecting (and
quickly editing) the transcript text. Preparing video depo clips is as simple as entering the pages and lines of the desired designation. While it could easily take a matter of
several minutes to do this with a video editing program, it takes only a matter
of seconds, using something like TrialDirector.
TrialDirector offers a number of options for
playback of deposition video. I have prepared an explanation of all of these for counsel in a recent
case, so I will now share that with you here.
Classic -- This is the way we used to do it with
earlier versions of TrialDirector. It still works fine, but reduces the video
display a bit, compared with the newer closed-caption option.
Classic 2 -- Here we are showing more text and
less video. This could be a good option where the text needs extra focus, such
as with a witness speaking another language with an interpreter.
Closed Caption -- This is the format we use most often
nowadays when we need to display text. This gives a large video image, and
includes the scrolling text.
Closed Caption - 2 -- Offers a smaller video
display with the same amount of text as the Closed Caption option. This can be
helpful when the lower edge of the video display is important, such as for
showing a witness’ hand movement, time/date display, etc.
Video Only -- This is another method we frequently use
when text display is not desired.
Transcript Only -- This format may be used for audio
recordings, offering a helpful script for jurors to follow. Alternatively, you can also use a blank screen, or blank screen with scrolling text.
Overlay -- This is a nice option when the text
is critical, although the video image is pretty small – showing quite a bit of text yet to
be spoken. This can be used effectively when a witness speaks another language
and uses a translator.
Overlay 2 -- Similar to above, but shows less
text not yet spoken, more text already spoken. The disadvantage with this
option is that the viewer sees only part of the text which has not yet been
played, perhaps actually causing distraction, as a juror attempts to read what is not yet displayed.
Each of these options mentioned above can
be easily enabled by toggling a preference setting. The format you choose should consider what is important for jurors to see - video, transcript, or exhibits. Other special circumstances should also be considered, such as translations, and poor audio or video quality.
You can display the deposition video along with the full text
of the designations, and can also add the exhibits at the same time. This requires setting up both video and exhibits for
display in advance or can be controlled as-needed during trial. This is very
effective for displaying the (admitted) exhibit to the jury as the witness
discusses it.
If you enjoy and appreciate this
blog, please don’t forget to “Like”us on Facebook!