Trial Magazine

When you start a new case, plan the end game from day one: what you want to happen at trial. This includes planning which witnesses you will present at trial. But how can you plan for the possibility that your witness may not make it to trial? One strategy is to ensure that video depositions are in your game plan for all your key witnesses.

Under Federal Rule of Civil Procedure 32 and state equivalents, you may use deposition testimony at trial if

• the opposing “party was present or represented at the taking of the deposition or had reasonable notice of it”
• “it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying”
• “the use is allowed by Rule 32(a)(2) through (8).”¹

Rule 32 goes on to list the circumstances in which you can use the deposition, such as for impeachment; when the deposition was of a party, agent, or designee of the party; and when a witness is unavailable.²

Any deposition you use at trial should be presented as a video whenever possible to better engage the jurors’ attention. So what do you need to consider going into a deposition to accomplish your end game?

Getting the Tech Right

Before you can determine how you want to use a video deposition at trial, set up your tech equipment and recording process to get the best video possible throughout discovery. Keep these fundamentals in mind.

Equipment and room setup. In a society of TikTok, YouTube, and various apps and streaming services, jurors are accustomed to a certain level of technological sophistication. All video depositions should use at least high-definition recording methods, as that is the video quality most jurors are used to seeing in their homes.³ If your courtroom is not equipped with a high-definition screen for playback, request permission to bring your own.

Also consider the room conditions, backdrop, lighting, camera placement, angle (or multiple angles), zooming ability, sound clarity, and microphone placement (wired or wireless; on the table or lapel).⁴ Be sure to review local rules, which may also govern camera placement, number of cameras, and lighting.⁵

The who and the how of recording. Check state and local rules to ensure you are aware of any limitations on who may perform the recording services, and obtain a consent order setting at least the terms and conditions for the recording. In the order, you may want to include who can record (including attorneys themselves); any system limitations; whether the video is required to constantly show the date and time; when the recording will start and stop; permission to insert exhibits into the recording as a side-by-side or standalone image; the option to close caption the testimony; any backup systems allowed for the recording should your main recording system fail; and uses of the recording.

If you are recording the video yourself, you need a good camera and microphone that you know how to set up. If remote, you must know how to record on Zoom or Microsoft Teams.⁶ Practice with the equipment so you know how to set it up and that it will work on the day of the deposition.

Arrive early to set up the camera and recording equipment. Focus the camera on the deponent before you start. If you are doing the recording, check the camera periodically to ensure the witness stays in the frame. It also may be difficult to record the exhibit along with the deponent if you are doing the recording, so you may need to insert the exhibit as a side by side after the deposition is completed.

If you are hiring a videographer service, many court reporting services record remote depositions using Zoom, which offers MP4, M4A, or M3U.⁷ If you are using Zoom, its cloud recording can provide closed captioning and even audio transcription.⁸

If you are in person, typically you need a videographer present. Regular video recording services offer the video in MP4, CSV, and MPG, and then deliver the video in various media formats, including electronic file, DVD, or CD-ROM. Ask your trial technology specialist (the IT person you intend to take with you to trial) which format you need to cut the video into clips for trial.

Generally, court rules require a certification of the video to be used in court—and there are specific procedures for doing so.⁹ If you are recording the video on your own, find out who you need to retain to certify it for later use in court.

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Ensure the video is being recorded by ‘spotlighting,’ or focusing, on the witness.

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Spotlight the witness, and don’t forget about exhibits. Ensure the video is being recorded by “spotlighting,” or focusing, on the witness. If the witness is discussing an exhibit, that should be recorded separately, especially if the exhibit is being highlighted or marked up during the deposition. This is incredibly important because the jurors must see both the witness and the related exhibits at trial.

Failure to record the spotlighted witness separately may cause issues for trial. The reason you want a video deposition is for the jurors to experience the witness’s mannerisms and to show how he or she reacts to the exhibit. When creating the deposition video cuts for trial, you want some flexibility. At some points, you may want to focus solely on the witness. When you want to also show the exhibit, you need a separate recording of the exhibit (or worst-case scenario, a photo of the exhibit). This allows you to create a picture-in-picture or side-by-side view that displays the recording of the witness simultaneously with the recording of the exhibit.

Also keep in mind that if the exhibit stays on the screen in the video past the time it is being discussed, defense counsel likely will object. If there is no spotlighted video of the witness providing testimony without the exhibit on the screen, it may result in a blank image for that portion of the tape. In all, it makes your witness less effective.

Pretrial Prep and Coordination

When making pretrial stipulations, you should address several issues with opposing counsel related to video deposition cuts for trial. Discuss the platform to be used to exchange the page line designations by each side, as well as the time line for the exchange of the initial designations, counter designations, clarifications, and objections to the cuts. In your pretrial stipulations, also agree on a deadline for when the videos should be shared with opposing counsel and the time period they have to respond to the cuts—with no response from the other side creating a waiver to any arguments regarding the cuts.

Work with defense counsel to ensure you can share your anticipated video trial cuts along with defense counsel’s clarifications and counter designations in the same system. Software such as Nextpoint (www.nextpoint.com) allows you to upload the transcripts, mark the deposition transcript into page line designations (also known as trial cuts) for each party along with objections, and print out the deposition transcript cuts to be used at trial by each party.

Alternatively, you can designate each party’s portion to be played at trial by listing page lines in an Excel spreadsheet or highlighting the relevant portions in a copy of the transcript and sharing that with the other side for objections, counter designations, and clarifications.

No matter which approach you follow, agreement as to the process the parties will use for trial designations helps to ensure the trial cuts’ page line designations are provided in a timely manner so you can make the actual cuts of the video.

Once the parties designate their trial cuts, counter designations, and clarifications, any unresolved objections need to go to the court. After you have the court’s rulings on the objections, the approved deposition transcript designations are ready to be converted into the video trial cuts.

Ideally, your trial technician should make the conversion from your page line trial cut into video with you confirming the work is correct before it is played in court. The trial technician may use editing software such as Adobe Premiere Pro, Final Cut Pro X, VEGAS Pro, or MAGIX Video Pro X to cut the video for trial.¹⁰ Watch the prepared video clips to ensure they comply with the court’s rulings and they will not be too long and lose jurors’ attention.

Address several items when converting your page line designations into video. Can the questions and answers in each of the videos be heard clearly? If not, you must decide whether you want to synchronize closed captioning from the transcripts into the video. If you do this for one video with unclear sound, then you may need to do it for all the videos. Consistency is key.

Also, if you use closed captioning on some but not all videos, be prepared for defense counsel to argue. They may want closed captioning on a particular video to either emphasize the words the deponent said or to draw away from the deponent’s mannerisms. If you only do closed captioning for the cut with unclear sound, it may draw attention to that individual’s testimony. Keep in mind, however, that placing closed captioning in the videos may cause the jurors to focus on the words and not the mannerisms and responses of the witnesses.

Once you have the video trial cuts completed, exchange them, along with any exhibits designated in the cuts and an introduction for the video, with the opposing counsel. Any videos exchanged should include the page line designations. Your introduction should tell the jurors a little about the witness, the date of the testimony, and the duration of the video.

Platforms such as Dropbox and Box can facilitate this exchange. They also have a helpful feature that records the time something is uploaded to document a timely exchange of materials.

Presenting the Clips at Trial

Once the video cuts are made, you can use software such as OnCue, TrialDirector, Sanction, TrialPad, and ExhibitView to present them at trial.¹¹ When you get into the courthouse, think about the physical setup in the room for the judge and jurors to see and hear the videos. For example, what size is the screen? Research shows that larger screens emphasize what is presented, increasing attention and possibly memory of what is shown on the screen.¹² You may want to consider having a dedicated IT person for trial to ensure the video and any other electronic presentation runs smoothly.

Even after your videos are played and you rest your case, your video work is not done. Defendants will be serving their video trial cuts, and you need to ensure they abide by the pretrial designations. It is not uncommon for defense counsel to slip in testimony that was not agreed on or that is subject to a motion in limine, causing your case to end in a mistrial.

Finally, if defendants’ trial cuts have page line designations that were played in your case in chief and opposing counsel wants to play them again in their case, decide whether you want to argue that the testimony is cumulative or allow them to play that testimony again.

For example, if opposing counsel’s clip replays testimony that is not advantageous to your case or places the deponent in a bad light (appears to be contradicting that person’s prior testimony or the evidence, makes the deponent appear unlikeable, or replays testimony providing evidence of alternative causes), you should object to the cumulative testimony.

Remember that setting the rules early on for video depositions and paying attention to details allows you to provide jurors with an engaging presentation of the evidence.

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Karen Beyea-Schroeder is the founder of the Schroeder Law Office in The Woodlands, Texas, and can be reached at karen.schroeder@schroeder-lawoffice.com. The views expressed in this article are the author’s and do not constitute an endorsement of any product or service by Trial or AAJ.

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Notes

1. Fed. R. Civ. P. 32(a)(1)(A)–(C).
2. Fed. R. Civ. P. 32(a)(2)–(4).
3. In 2015, over 80% of households had at least one high-definition television, and today, 85% of televisions produced are high-definition capable. Leichtman Research Grp., HDTV Sets Now in Over 80 Percent of US Households, Mar. 13, 2015, https://tinyurl.com/3fhxsjkk; Home Theater Heroes, Are All Smart TVs HD?, https://hometheaterheroes.com/are-all-smart-tvs-hd/.
4. Websites such as Deposition Academy (www.depositionacademy.com) and The American Guild of Court Videographers (www.agcv.com) have tips on video and recording equipment to use. For example, see Deposition Academy, Recommended Microphones, https://depositionacademy.com/deposition-video-equipment/microphones/.
5. See, e.g., Rice’s Toyota World Inc. v. Se. Toyota Distribs., Inc., 114 F.R.D. 647, 652 (M.D.N.C. 1987) (stationary camera with no special lighting is allowed); In re Daniels, 69 F.R.D. 579, 582 (N.D. Ga. 1975) (no zoom lens). See also Fed. R. Civ. P. 30 for additional requirements for recorded depositions.
6. For equipment recommendations, see supra note 4.
7. MP4 files contain audio and video, M4A files contain audio only, and M3U files contain playlists of audio files for playback. Zoom, Understanding Recording File Formats, Dec. 10, 2021, https://support.zoom.us/hc/en-us/articles/203650745-understanding-recording-file-formats.
8. Id.
9. In Alcorn v. City of Chicago, the court allowed an uncertified Zoom recording of a deposition for internal trial preparation only. It also required that the deposition be recorded in “Spotlight” view so only the witness appeared on camera and not the attorneys or their backgrounds. 336 F.R.D. 440 (N.D. Ill. 2020).
10. For more on these programs, go to: Adobe Premiere Pro (www.adobe.com/products/premiere.html); Final Cut Pro X (www.apple.com/final-cut-pro); VEGAS Pro (www.vegascreativesoftware.com); and MAGIX Video Pro X (www.magix.com/us/video-editor).
11. For more on these programs, go to: Trial Director (ipro.com/products/trialdirector/); Sanction (www.sanction.com); OnCue (www.oncuetech.com); TrialPad (www.trialpad.com); and ExhibitView (www.exhibitview.net).
12. See, e.g., Byron Reeves et al., The Effects of Screen Size and Message Content on Attention and Arousal, 1 Media Psychol. 49 (1999).