News

 "Preventing Frustration of the Testator's Final Wishes"

"The  legal system has increasingly utilized modern technology in carry out  its duties including, more recently, the videotape. It thus would seem  that serious consideration of using videotapes in a will situation is  warranted. This article delineates the uses of videotaping will  execution ceremonies and the theories of admissibility of the videotape  to prove the testator's statements made contemporaneously with the will  execution. This can be distinguished from the more traditional and  established methods of acquiring admission of the testator's  declarations. Also detailed are the substantive and technical contents  of the videotaped will execution ceremony. The article further presents  the benefits as well as the potential difficulties of using videotape  for this purpose. The author concludes with a look to the future: the  possibility that a will execution videotape could serve as the will  itself." by Gerry W. Beyer, Texas Tech University School of Law,  February 12, 2009. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1341907. 

 Day-In-The-Life Video, Plaintiffs Ace In The Hole!

$55M  for med-mal sets mark; day-in-the-life video of brain-damaged victim  vital factor. National Law Journal - June 9, 2000 A chicago jury has  awarded 40.44 million to a 54-year-old woman who sustained massive  permanent brain damage during a routine diagnostic procedure and has  additionally ordered the defendants to pay $15 million to the woman's  husband on his loss-of-consortium claim. According to plaintiffs  attorney, Joseph A. Power, Rogers & Smith, P.C., the award to Mrs.  Mederos and the corsortium award to her husban were both records for  Illinois. Mr. Powers also stated that the huge loss-of-consortium award  was due in part to a calculated risk taken by plaintiff's counsel. They  had prepared a day-in-the-life video but decided not to use it in their  case-in-chief so as to avoid charges of inflaming the jurors' passions.  However, they reserved the right to use it if the defendants opened the  door. That door opened when defendants took the position that Mrs.  Mederos did not deserve damages for pain and suffering because she was  so disabled, she couldn't feel any pain. The plaintiffs played the video  during their rebuttal. "The film clearly showed that she understood  what was going on, and that shed did feel pain", Mr. Powers said. "The  video was a significant reason [for the two awards], he added. 

 Why should the execution of a pre-nuptial agreement be videotaped?

NCFamilyLaw  - CLIENT INFORMATION LETTER # 48 "One technique that is being used to  make pre-nuptial agreements less vulnerable to attack is to videotape  the execution of the agreement. If the issue of validity is ever  litigated, a videotape of the signing can go a long way to show there  was no duress or coercion at the time of signing." http://www.ncfamilylaw.com/download/prenup48.html. 

 No Videographer Is Almost Malpractice

"It's  almost malpractice these days not to use a videographer during  depositions, because you miss the non-verbal cues like facial  expressions and gestures. The difference between reading a transcript to  a jury and showing a video ....is like night and day. Let's face it,  we're a TV generation. We respond to the visual cues," said Daryl  Williams, Attorney with Baird, Williams and Greer. Arizona Republic  article by Claire Bush, Special for Republic. 

 Videotapes Useful to Judges and Juries

"Manning  said videotapes allowed under federal-court rules are useful to judges  and juries, because "the demeanor of the witness is preserved" better  than if it is captured by words on paper. He said studies show that  "witnesses much less frequently lie on the stand if they are on camera."  Michael Manning, Esq., in reference to the Symington Case; Arizona  Republic article by Pat Flannery, Staff Writer. 

 Nothing Matches Video for Pure Communication Power, by Scott Heimes

(3M  Meeting Network - Articles & Advice) "Research has shown that  visual aids increase what the audience remembers from your presentation.  In a book called Silent Messages: Implicit Communication of emotions  and Attitudes, phychologist Albert Mehrabian found that 55 percent of  what a person remembers from a presentation stems from what they see --  Mehrabian called this the visual component. Thirty-eight percent of what  people remember comes from how the presenter sounds -- the vocal. How  about the specific words you so carefully choose to convey your thoughts  and drive the message home? Sadly, just a paltry 7 percent of what  people remember comes from the words you use. The visual component of  your message accounts for more than half of what the audience takes away  from your presentation! While all visual aids -- compter-based slides,  overhead transparencies, 35mm slides, flip charts or simple paper  handouts -- enhance communication, nothing beats the pure communication  power of video. It can be the most effective tool at a presenter's  disposal when used correctly. Here's why video is so powerful: Even a  simple clip offers serveral additional layers of information compared to  a basic verbal or voacal message. Imagine a 20-second clip of your CEO  explaining your company's long-term growth strategy. Not only does the  audience hear your CEO's message in her own voice, but they can see the  physical gestures (hand gestures, nods of the head, raised eyebrows, a  warm smile) she uses to emphasize key points. The audience can also  study the way she looks. If she comes across polished and professional  (which most CEOs do), it creates a feeling of confidence and adds  credibility to her message. Finally, when video is used in a  presentation, it appeals to our entertainment sensibilities. We've  become a visually oriented society used to receiving and processing  information through video as opposed to text. Right or wrong, CNN has  become a more comfortable medium for most people than The New York  Times. When you use video -- even simple video -- in your presentation  it makes the audience sit up in their seats and watch more closely.  Taken as a whole, the audience remembers substantially more from several  short video clips than if the same message were conveyed in other  mediums." 

 Video keeps Rambo lawyers in check!

Sandra  Gavin is director of advocacy programs at Rutgers School of Law and a  trial lawyer in private practice. She describes what she calls the  "Rambo Culture" of depositions where, since the proceeding are "far  removed from judicial supervision, an underworld developed over time  which became a self-perpetuating breeding ground for unprofessional --  if not outright unethical -- conduct". In one case, Paramount  Communications Inc. v. AVC Network Inc., 637 A.2d 34 (Del. 1994), Gavin  noted that the Delaware Surpreme Court took exception to some conduct by  well-known Houston litigator Joseph Jamail in the course of a nonvideo  deposition. The Delaware court objected to Jamail's calling opposing  counsel an "asshole", his telling opposing counsel, "You could gag a  maggot off a meat wagon" and other generally unfriendly conduct. Gavin  noted that having video at depositions can remedy the problem. "I don't  think video is going to turn lawyers into 'congeniality on camera', but  it does have somewhat of a deterrent effect on Rambo behavior", she  said. Video depositions can capture some intimidation techniques lawyers  use that don't appear on a written transcript. "It's the posturing, the  pointing of a finger, the tone in the voice. It doesn't show up on a  trasnscript", Gavin said, adding "I teach advocacy - I don't teach my  students to be milquetoast -- they'll get eaten alive if they're to  genteel". However, she cautions them against going to the other extreme  as well. 

 Video Paid Huge Dividends

$110-Million  settlement in American Eagle flight 4184 crash (Chicago Lawyer -  January 1998) Robert A. Clifford, of the Clifford Law Firm and lead  plaintiff's counsel representing 15 of the 28 families whose suits  remained at the time of trial, "finds it useful [in a personal injury  case] to show jurors a day-in-the-life video of the plaintiff living  with a disability the defendant caused him or her". "But in a death  case, how do you do it, Clifford asked rhetorically. The  professional-quality videos featured interviews with spouses, children,  parents and friends of the loved one. High school teachers talked about  what good students they were; bosses talked about their budding careers.  All videos climaxed in tearful accounts of hearing about the crash,  hoping the loved one wasn't on the plane. Every video was a  tear-jerker". Clifford sends copies of the tapes to opposing counsel,  showing them what will be presented at trial, and invites them to send  copies to the insurers. Ultimately, a $110-million settlement was  reached in this 1994 crash of American Eagle Flight 4184 near Roselawn,  Indiana, which killed all 68 passengers and crew aboard. 

 Classic Communication Study by UCLA Professor Albert Mehrabian

The  Classic Communication study is UCLA Professor Albert Mehrabian's 1972  communication study on non-verbal communication and is a part of his  book (Silent Messages, 1971 also see Nonverbal Communication, 1972)  According to Mehrabian's theory, "93% of our communication is nonverbal  and only 7% is content". "The total message one receives in any face to  face communication is divided into three components. The words  themselves which communicate 7%. The tonality used in delivering those  words which is meant to convey 38%. The body language accompanying the  other two, which is said to convey 55%". (Organizational and Business  Story Telling In The News: Story #113, www.stevedenning.com/SIN-113-Rice-cool-as-storyteller.html). 

 Classic Communication Study (related story)

"The  Journal of Consulting Psychology, 1967, Vol. 31. No. 3, pg. 248-252 is a  report entitled Inference Of Attitudes From Nonverbal Communication In  Two Channels. This study was designed to investigate the decoding of  inconsistent and consistent communications of attitude in facial and  vocal channels. The experiment team found that the facial component  received approximately 3/2 the weight received by the vocal component.  You can readily see that this roughly corresponds to the 38% and 55% of  the figures mentioned *earlier (Organizational and Business Story  Telling In The News: Story #113)". *See main story. 

Video Deposition History

Before  the 1993 Fed. R. Civ. P. 30, there was no right to a video deposition. A  party wishing to take a video deposition had to obtain the consent of  the parties or get a court order. In fact, it was not until the 1980  amendments to Rule 30 that video depositions were even allowed. With the  1993 amendments and the proliferation of video into many parts of  everyday life, avoiding video may be difficult at best for the  camera-shy witness. A series of decisions has held that the 1993  amendments created a right to a video deposition. In November of 2002,  the U.S. District Court for the District of New Jersey compelled a  former college professor to give a video deposition, rejecting her  argument that being deposed on video would cause her psychological harm.  Fanelli v. Centenary College, 211 F.R.D. 268 (D.N.J. 2002). In the  underlying case, the professor claimed that the college had breached a  contract by failing to conduct a hearing before terminating her  employment. The court ruled, in order to overcome a party's right to a  video deposition under Rule 30(b)(2), a witness would have to  demonstrate a "clearly defined" and "serious injury" to justify a Rule  26 protective order to quash the video. The bench and bar have given  numerous reasons for preferring video depositions. First and foremost:  to capture the demeanor of the witness something often lost when reading  a stenographic transcript. Courts, including the U.S. District Court  for the District of Kansas, have opined that video is an important tool  for jurors. The court stated, "Videotape depositions are considered a  superior means of presenting the testimony of an absent witness, because  they allow the jury to better assess the credibility of the witness".  Weseloh-Hurtig v. Hepker, 152 F.R.D. 198, 201 (D.Kan 1993). David  Horrigan National Law Journal May 8, 2003. 

 Rules For Video Recording Depositions

Arizona  Rule 30(b)(4) Unless the parties stipulate or the court orders  otherwise, the deposition shall be recorded by stenographic means and  may also be recorded by sound or sound-and-visual means. The party  taking the deposition shall bear the cost of the recording. The  stipulation or order shall designate the person before whom the  deposition shall be taken, the manner of recording, preserving and  filing the deposition, and may include other provisions to assure that  the recorded testimony will be accurate and trustworthy. A party may  arrange to have a stenographic transcription made at the party's own  expense. Any changes made by the witness, the witness' signature  identifying the deposition as the witness' own or the statement of the  officer that is required if the witness does not sign as provided in  subdivision (e), and the certification of the officer required by  subdivision (f) shall be set forth in a writing to accompany a  deposition recorded by nonstenographic means. Unless otherwise agreed by  the parties, a deposition shall be conducted before an officer  appointed or designated under Rule 28 and shall begin with a statement  on the record by the officer that includes (A) the officer's name and  business address; (B) the date, time and place of the deposition; (C)  the name of the deponent; (D) the administration of the oath or  affirmation to the deponent; and (E) an identification of all persons  present. The officer shall repeat items (A) through (C) at the beginning  of each unit of recorded tape or other recording medium. The appearance  or demeanor of deponents or attorneys shall not be distorted through  camera or sound-recording techniques. At the end of the deposition, the  officer shall state on the record that the deposition is complete and  shall set forth any stipulations made by counsel concerning the custody  of the transcript or recording and the exhibits, or concerning other  pertinent matters. 

 VideoDepostions 101 & 201 Everything You Need To Know, by Samantha L. Miller, Esq., InData Corp.

VIDEO  DEPOSITIONS: GETTING THE BEST QUALITY INTRODUCTION People, including  jurors, have come to expect more than just paper to tell a compelling  story. We have been spoiled by Hollywood and the technology revolution.  We have come to expect the visual effects we see on CNN, or videotaped  action as seen on reality television shows. Hard copy depositions, read  back in the courtroom, are old school. Successful practice today often  means video presentation of depositions. Video has another big advantage  that the transcript alone does not have - body language as a form of  communication. There are several considerations when deciding whether to  video tape a deposition. One of the most common reasons to video tape a  witness is if the attorney has reason to believe that the witness may  be unavailable to testify live at trial, whether due to illness,  geographical distance, or some other reason. When a witness is  unavailable at trial, the attorney may introduce the testimony from  their deposition or other legal proceeding without the testimony being  considered hearsay. (See Federal Rule of Evidence 804.) Capturing a  witness’ body language on video can also help your case for impeachment  purposes. Rather than just referencing the transcript, with video you  can show the jury the witness saying something to the contrary in living  color and sound. The effect is much more powerful than a quoted passage  in a flat transcript. As seen in court, the way someone answers a  question can be as important as the answer itself. Is the witness  hostile? Do they look sincere? What is their body language conveying?  Capturing a witness’ body language, inflection, and emotion on video can  tell stories that no paper transcript could ever communicate. Many  attorneys routinely videotape depositions so they have the advantage of  seeing the deponent’s body language as they answer questions. If you  choose to videotape, what are some factors to consider? VIDEO  DEPOSITIONS: GETTING THE BEST QUALITY WORK WITH A SPECIALIZED LEGAL  VIDEOGRAPHER Always book your video depositions with a reputable,  experienced videographer who specializes in legal proceedings. The  videographer who taped your cousin Larry’s wedding may have done a  wonderful job, but that does not qualify him to record a legal  proceeding. Legal videographers are trained professionals who typically  obtain a special certification in recording legal proceedings through  one of several national organizations. They are also aware of the  techniques to effectively record a deponent’s testimony with little  distraction to the proceeding and for best visual impact. How to Find a  Videographer There are several ways to find a reputable videographer.  Many court reporting agencies have videographers on-staff or work  closely with independent legal videographers with whom they have an  ongoing working relationship. You can ask your court reporting agency  for a referral, or select a videographer on your own. Organizations such  as the NCRA (http://clvs.ncraonline.org/Directory/) and the American  Guild of Court Videographers  (http://www.legalvideographers.com/find.php) provide directories of  certified videographers on their Web sites. Just as attorneys develop a  relationship with certain court reporters, you may find that you prefer  working with a certain videographer. Common Videographer Certifications  National Court Reporters Association (www.ncraonline.org) offers the  Certified Legal Video Specialist certification The American Guild of  Court Videographers (www.legalvideographers.com) offers the Certified  Deposition Video Specialist (CDVS) certification. VIDEO DEPOSITIONS:  GETTING THE BEST QUALITY What to Expect from Your Videographer A good  legal videographer will: Capture Quality Audio The videographer will use  highly accurate microphones to record the proceeding and parties to  obtain the best audio quality. Typically, the witness and questioning  attorney will be individually “mic’d” with lavaliere microphones. A  table microphone is also used to capture objections. The videographer  will continually monitor the audio feed and adjust as needed to capture  clear and balanced audio levels. Establish a Proper Setting for Filming  The videographer will establish a setting that will keep the focus on  the deponent and minimize visual distractions. For example, if filming a  witness in a glass enclosed conference room, would you want to see  numerous people walking behind the witness while they are testifying?  Probably not. If a proper, dedicated deposition chamber is unavailable,  many videographers will either suggest the best spot for shooting, or  even bring backdrops and lighting kits in order to establish a quality  background. Be Minimally Intrusive Legal videographers are professionals  who understand that this is a legal proceeding and will generally blend  into the background. Understand the Technology A good legal  videographer understands the latest technology and its proper usage.  Even when a witness is recorded perfectly, you don’t (usually…) want  them to appear tinted green in the final video product! Use of  three-chip digital cameras or other superior recording equipment will  ensure a clear picture, which is pleasing to the eye and not distracting  to a jury. VIDEO DEPOSITIONS: GETTING THE BEST QUALITY VIDEO FORMATS  OK, you’ve taken the plunge and decided to videotape your next  deposition. Now what? You should discuss with your videographer the  format in which you want the video deposition delivered. Encoding &  Syncing The first question to answer is whether you want the deposition  video encoded and synchronized (“synced”) with the transcript text. Some  videographers will encode and sync the video automatically as part of  their services, others may ask first, or not at all. Using these  services may sometimes incur an extra charge, but are usually well worth  the expense. Encoding converts the video to a digital format that will  allow you to review the deposition on a computer. The syncing process  matches the transcript text to the video, so that when you jump to a  specific place in the proceeding, you can see the corresponding text and  video together. MPEG-1 or MPEG-2 If you have the video encoded and  synced, the next question is whether you want the final format in MPEG-1  on CD-ROM or MPEG-2 on DVD. Currently, MPEG-1 on CD-ROM is the standard  industry format for video depositions. The MPEG-1 format is compatible  with most legal software applications, in particular litigation support  and trial presentation software programs like CT Summation®, LiveNote®,  and TrialDirector®. These types of software programs allow you to easily  extract parts of a deposition video as video clips when you prepare  your case for trial. What is encoding and synchronization? Encoding  Encoding is the process of converting deposition video tapes to a  digital format stored on a CD or DVD. You get quality video that runs on  your computer, and is easily duplicated. Synchronization Your encoded  video file is synchronized with the court reporter’s ASCII text.  Synchronized depositions are the easy way to review and locate key  testimony, and create and export clips that contain both the video and  the relevant text. VIDEO DEPOSITIONS: GETTING THE BEST QUALITY The  MPEG-2 on DVD format is becoming more popular, especially since some  videographers record straight to DVD which obviates the need to encode  after the fact.1 An advantage to MPEG- 2 encoding is that you can play  the DVD on a standard DVD player and the quality of the video may be  better than MPEG-1 format.2 An important detail about MPEG-2 is that you  cannot create video clips or organize video clips on your DVD player  for trial. Further, DVD format is not compatible with all software  applications, especially with many of the litigation support or trial  presentation programs on the market. To use DVD video with your software  applications, you may be required to separately locate, purchase, and  install a particular codec viewer to work with the DVD data.3 Finally,  keep mind that although the video quality of DVDs may initially appear  better than MPEG-1 format, the quality may be limited by the resolution  of the projector and other hardware used at trial. If you would prefer  to receive MPEG-1 data on a single DVD disc, instead of several CD ROMs,  your videographer should be able to create a DVD data disc. Using a DVD  to store MPEG-1 video will allow you to store around 4 times the data  on a single disc, while still using the simpler MPEG-1 playback. Bottom  line: When in doubt, ask for MPEG-1 on CD-ROM or DVD data disc unless  you are familiar with MPEG-2 file types and their use. Video clips are  segments of the video that you intend to use at arbitration or trial,  usually for impeachment purposes. For example, you can create a clip to  queue up a specific question and answer pair. VIDEO DEPOSITIONS: GETTING  THE BEST QUALITY MPEG-1 on CD-ROM Pros Currently the industry standard  format Compatible with most software applications, including your  litigation support and trial presentation software Bit-rate is  adjustable by videographer to control visual quality Cons Your  videographer will usually have to convert the recording tape or DVD to  MPEG-1, sometimes an extra charge, although direct encoding to MPEG-1 is  possible Standard visual quality may not be as good as standard MPEG-2  on DVD MPEG-2 on DVD Pros Standard video quality of the proceeding is  usually better (e.g. less grainy) Some videographers record straight to  DVD, so that no conversion would be required You can play the proceeding  on any standard DVD player Cons Not automatically compatible with all  software applications Partial elimination of words may occur in chapter  breaks Ultimately, visual quality can be impacted by the type of  hardware used to present the video at trial. VIDEO DEPOSITIONS: GETTING  THE BEST QUALITY Video Deposition Viewers It has become more common in  recent years for videographers to deliver video depositions playable on  stand-alone viewer software. These viewers are developed specifically  for the legal professional and will usually allow the recipient to  review the deposition, create video clips, search for particular words  in the transcript, and more. There are several advantages to using a  stand-alone viewer. They are usually inexpensive or provided at no extra  charge as part of the videographer’s service.4 They are generally very  easy to use, with controls similar to those on a DVD player. Stand-alone  viewers are also very convenient. With a stand-alone viewer, you can  pop the video deposition into your computer and review testimony right  away, without the need to load the video into a separate application.  Viewers often provide basic editing and capture functionality, so you  can work with your deposition video even if you don’t own any litigation  support or trial presentation software programs. VIDEO DEPOSITIONS:  GETTING THE BEST QUALITY Handy Check List To recap this section, here’s a  check list of what to discuss with your videographer prior to your  deposition: Will he encode and sync your video? (Yes/ No) Will the video  be delivered on CD in MPEG-1 format or on a DVD in MPEG-2 format? Will  it be delivered with a particular viewer? (e.g. DepoView) Can it be  provided as a load file suited to your litigation software? SOFTWARE  PROGRAMS TO WORK WITH VIDEO While stand-alone viewers provide some basic  functionality, there are many other popular litigation-specific  software products that offer advanced capabilities when working with  video. Will you be importing the video into a particular software  application like TrialDirector®, LiveNote®, CT Summation ®, or  Concordance®? If you have one or more of these products, or intend to  use them, you may want to tell your videographer in advance. Some  products may suggest or even require certain load files that will make  it easier for you to import the video transcript into the program. For  example, CT Summation software products (Summation Blaze® LG Gold and  iBlaze®) will accept video transcripts in the .SBF format. The end-user  can simply drag-and-drop the .SBF file into the program and the video  transcript automatically loads. The court reporters or videographers  create the .SBF files with a free software program offered by CT  Summation called Tran-SendCR® Plus.5 Other litigation programs may have  similar capabilities and requirements. VIDEO DEPOSITIONS: GETTING THE  BEST QUALITY Litigation Support Software Many popular litigation support  and transcript management programs allow you to view a video transcript  along with the scanned exhibits, giving you a full digital version of  the deposition. Litigation support software programs are designed to  manage and organize your case evidence, but not necessarily present it  at trial. If you do create video clips in these programs, you will  likely need to export them into a separate trial presentation program.  Some paralegals and attorneys opt to create video clips directly in  their trial presentation software, to avoid the hassle of exporting  files later VIDEO DEPOSITIONS: GETTING THE BEST QUALITY Trial  Presentation Software As discussed in the introduction, video can make a  significant impact when used at trial. A human, even their video  doppelganger, will always have a stronger impact on a jury than  testimony read from a paper transcript. Trial presentation software  programs specialize in presenting evidence in powerful ways. Documents,  video depositions, photographs, native electronic files, and any  evidence that can be projected onto a video screen can be managed and  displayed creatively in a good trial presentation program. You can use a  trial presentation program to organize your trial notebook and stage  the exhibits for the jury with annotations or call-outs to focus their  attention. Video depositions can be presented alongside their matching  exhibits. Many trial presentation software programs integrate with  litigation support software, allowing an easy right-click of the mouse  to share data between programs. VIDEO DEPOSITIONS: GETTING THE BEST  QUALITY About inData Corporation Founded in 1985, inData is a technology  company specializing in the management and presentation of information.  For legal professionals dealing with the challenges of litigation,  inData develops innovative software and provides personalized eDiscovery  and trial consulting services. Products include TrialDirector®,  TimeCoderTM Pro, TimelineXpress®, DepoViewTM, and inData inVentoryTM.  For more information about inData’s products and services, visit  www.indatacorp.com or call 800-828-8292. About the Author – Samantha L.  Miller, Esq. Samantha Miller is the Vice President of Marketing for  inData Corporation. Prior to joining inData, Ms. Miller served as  Director of Marketing and Professional Development for Summation Legal  Technologies, a leading litigation software company. She has published  several articles on litigation technology in national publications such  as the National Law Journal and the Journal of Court Reporting.  Previously, she practiced law in Philadelphia, Pennsylvania as a  commercial litigator. Ms. Miller is admitted to practice law in the  Commonwealth of Pennsylvania, the State of New Jersey, and has also  passed the California Bar exam. CONCLUSION While remembering all the  details of video deposition technology may be the last thing on any  attorney’s or paralegal’s mind, it is still beneficial to know the  basics of a quality video deposition and how it can ultimately be used  to their client’s advantage. Remember, keep an open dialog with your  videographer about your expectations and you will be pleased with the  results.Type your paragraph here. 

 NCRA Public Advisory Opinion No. 44 (2006)

"STATEMENT  OF FACTS A freelance court reporter has requested an opinion from the  committee on Professional Ethics regarding ethics issues involved when a  court reporter acts as both the verbatim reporter and the videographer  for the same proceeding. DISCUSSION The committe believes that a  reporter has an ethical duty not to enter into a business relationship  that compromises the reporter's ability to produce an accurate record.  Doing so creates the appearance of impropriety and undermines the  integrity of the profession. Acting as the videographer for a proceeding  can be a very complex endeavor as evidenced by the number of Standards  set forth by the NCRA'S Certified Legal Video Specialist Committee. For  example, Standard 25 states that "the videographer shall continuously  monitor the video recording with a monitor/receiver which is connected  to the output of the VCR". The committee believes that a single person  cannot continuously monitor the recording while simultaneously producing  a stenographic reporting of the proceeding. Provision No. 3 of the Code  requires a reporter to guard against not only the fact but also the  appearance of impropriety. Provision No. 9 requires a reporter to  maintain the integrity of the reporting profession. The paramount duty  of the reporter is to produce an accurate record. For a reporter to  agree to perform another duty that would take away from the reporter's  ability to focus on the reporting the proceeding violates the reporter's  ethical duties. CONCLUSION The Committee on Professional Ethics has  determined that a reporter may not act as both the videographer and the  verbatim reporter for the same proceeding. The paramount duty of the  reporter is to provide an accurate record of the proceeding. To be  responsible for handling the many issues related to operating the video  equipment that arise in a given proceeding would compromise the ability  to accurately report the proceeding. This would result in a violation of  Provisions Nos. 3 and 9 of the Code of Professional Ethics that deal  with avoiding the fact and appearance of impropriety and maintining the  integrity of the reporting profession." 

 Court Reporters Replaced?

The  Arizona Republic (Unknown Author and Date) Re - Cincinnati "A proposal  to replace court reporters with audio and video transcription machines  has angered some judges, who say the machines are not reliable. Hamilton  County Commissioner Pat DeWine said the court-reporter system is  antiquated and costly. The county's 41 court reporters cost $2.2 million  a year, he said. Audio recording systems, which cost roughly $60,000  per courtroom, are being rapidly adapted in the region, DeWine said." 

 Mobile phones Cause Audio Interference With Microphones Also!

"......Hand-held  email devices are well known to cause woes ranging from wounded thumb  tendons to strained marriages. Add to all that the aggravating hum  emanating from stereos, alarm clocks and public-address systems when the  devices are in close proximity to them. The noise is known in some  circles as Blackberry buzz. The mosquitolike noise happens when the  electrical circuitry of the phone or other electronic device converts  cellphone radio waves into audio waves. This happens specifically with a  type of wireless technology that transmits data in a series of pulses  that causes a buzzing sound. The noise occurs more often with  smartphones like Blackberrys than it does with regular cell phones  because smartphones talk to cellular base stations more often in sending  and receiving emails as well as calls........" Wall Street Journal  Article: Trying to Minimize A Lot of the Buzz About Blackberrys, by  Dionne Searcey and Jessica E. Vascellaro, Friday, May 11, 2007. 

 The State of Legal Videography In Today's Courts, by Gayle Marquette, Ph.D., CCVS, CSCV, CLVI

“Legal  Videography” Don’t go to Court without It! Gayle Marquette, Ph.D.,  CSCV, CLVI Founder of the American Guild of Court Videographers VIDEO  EVIDENCE, THERE IS NO SUBSTITUTE! The old saying that “a picture is  worth a thousand words” is more truth than poetry. The juries that are  presented with properly prepared video evidence will stay alert and will  remember far more information than those who simply hear the words  without having the advantage of the corresponding visual aid that should  have accompanied it. Videography to the legal professional is like a  copy machine to a busy office. The legal profession has arrived at the  point where it cannot successfully survive without it. With the courts  continuing to be backed up with civil cases from six to sixty months  across the nation, the courts are looking for every technique possible  that will speed the litigating process. Video recording of only  depositions is what many trial attorneys feel is what legal videography  is all about. It is not uncommon to find attorneys in this day and age  refusing to take testimony at a deposition without having it video  recorded. By time you finish reading this extensive report on legal  videography, you will discover that depositions is just the beginning of  what the professional legal videographer has to offer! VIDEO  DEPOSITIONS Taking depositions has been one of the methods that  attorneys have used for decades, during the discovery phase of a case,  to secure information that will speed the litigating process. Now, with  the advent of videography during the deposition, the attorney can show  to the triers of fact the facial expressions, the mannerisms, the  hesitations and the many telling features of the deponent in a way that a  typed written transcription of the testimony cannot show. By having the  videographer utilize their post-production editing from the original  recording of the testimony, it can save many hours of irrelevant  testimony that would otherwise have been presented during a trial. More  importantly, the video documentaries that are now produced on a regular  basis to be used in court are being effectively used during mediation,  arbitration or during other pre-trial attempts to settle cases out of  court. All video evidence of testimony under oath is controlled by the  court approved rules in our nation’s Federal, State, Appellate and  District courts. It is important for the attorney to know just what will  or will not be admissible in a court of law. As you already know, what  ultimately will be admitted during a trial is up to the discretion of  the Judge in any specific court. The American Guild of Court  Videographers (AGCV), the nation’s largest organization of professional  videographers who specialize in legal video, will only accept  “professional” videographers into its membership. These professionals  are trained in all aspects of legal videography. The AGCV specializes in  training and certifying its members in knowing and using the  appropriate rules in producing video evidence for the courts. The  professional videographers trained by the AGCV have become more than  just legal videographers, they have become expert consultants to the  legal profession in producing visual evidence for the courts that is  effective, compelling and convincing. MEDIATION DOCUMENTARIES We are  hearing more and more of new and creative methods on how videography is  being effectively used in the litigating process. With 95% of all civil  law suits never making it into court, the “Mediation Documentary”  (commonly referred to as a Video Settlement Brochure) has become the  most effective method of conveying the plaintiff’s story to the opposing  party. It can contain visual information (evidence) that would  otherwise not be permitted to be shown in court. Because there are no  rules regarding the content of the video mediation documentary, it can  be very convincing in bringing about a successful early settlement (with  the accompanying early payout for the attorneys) during pre-trial  negotiations above and beyond any other method now being used.  ACTIVITIES OF DAILY LIVING VIDEOS (Previously referred to as  “Day-In-The-Life”) It has been well established that a professionally  prepared video document depicting how a person’s life has been  inextricably altered by an unexpected, unfortunate and preventable  incident has proven to be far more effective and convincing than the  actual live testimony given by the victim sitting in the witness stand  attempting to tell their story during their live testimony! Seven figure  settlements are not uncommon when these video documents (ADLs) are  presented to the triers of fact at just the right time during the  presentation of the victim’s true condition. Remember, the viewer will  only remember 20% of what they hear but 80% of what they see and hear!  Rarely will a jury or judge be able to appreciate what the plaintiff has  had to suffer through to be able to rehabilitate them selves after a  catastrophic incident has destroyed, not only their present life, but  also their future without the advantage of seeing it with their own  eyes. It is almost impossible for people to appreciate what the victim  has had to endure without having it brought to them in full, capable  color so they can actually see it for themselves. This is especially  true when the case involves a burn victim or one that has lost a limb or  their sight. COMPUTER GENERATED RE-INACTMENTS The most important use of  video is not limited to just “real life” situations. With the advent of  extremely effective high-tech computer generated graphics produced on  video, the trial attorney can now present a “true to life” re-enactment  of an incident which otherwise would not have been available during  trial. These re-enactments have become so “real” that some judges are  having second thoughts about allowing them to even be shown in court.  They contend that a viewer may believe that the re-enactment is exactly  what happened rather than a depiction of what someone was told actually  happened. Again, these state-of-the-art methods are used very  effectively during pre-trial hearings and many times will lead to early  settlements. THE WILL EXECUTION CEREMONY An area for legal videography  which is becoming far more popular with the estate planning attorneys is  the video recording of the “Will Execution Ceremony.” By the showing of  a video recording of the ceremony, it will answer one of the most  important questions that leads to litigation concerning the validity of  the will and that is the questionable “mental” capabilities of the  testator or testatrix when the last will and testament was executed.  This problem is eliminated when the holder of the estate is shown  reading their own will. The properly trained legal videographer can  assist in the correct method of recording the event so as to remove any  doubts as to the validity of the document as read and signed by the  testator/testatrix. The exact same video methods that are used during  the will execution ceremony is equally effective when there is the video  recording of the pre-nuptial or post-nuptial agreement signings. VIDEO  FOR EVERY ATTORNEY IN THE FIRM Video has historically been mostly used  by trial attorneys, however, it can be effectively used by attorneys in  almost every phase of law. One such example was just mentioned above  with the estate planning attorney and another area, now being used more  and more, is the video recording of major construction projects (which  inevitably end up in court for one reason or another). These video  recordings are now being used for pre-construction documentation, video  documentation during the construction itself and many times as  post-construction video documentaries showing faulty materials and/or  workmanship. PRE-CONSTRUCTION SURVEYS The astute corporate attorney will  suggest the developer or general contractor, whether the project be  private or be federal, state or local government funded, have a  “pre-construction” video recording of the surrounding area where major  construction will take place to establish the conditions of properties  prior to the time that the first piece of equipment arrives on site.  This can save the developer or the tax payer from paying thousands of  dollars in false claims of damages due to construction. Here is where an  ounce of prevention can save many pounds of grief later. CONSTRUCTION  DRAW VIDEOS When it comes to video recording during construction, it  allows the one funding the project to verify exactly what work has been  completed and what materials are on sight before they cut the payment  check for the work as claimed by the contractor on the draw request for  payment. In the past it has been common for the lender or financer to  have Polaroid pictures to back up the draw request. This has been proven  to be easily misleading and fraudulent subjecting the lender to  substantial losses. These videos can also be used as training videos  teaching the bank inspector just what to look for when they are on  location at the construction site. POST-CONSTRUCTION VERIFICATION  Post-construction videos have been especially effective in showing  defective materials and sub-standard work before the final payments are  issued at the completion of a project. It is one way that the problem  that exists at a remote location can actually be brought into the  courtroom for the triers of fact to view! It is far more cost effective  than taking the jury out to the location so they can see the problems  for themselves. COURTROOM PRESENTATIONS Another area where video has  played an important role for the clients of an attorney is when the  video brings the scene of the incident into the court room and have it  projected to the TV monitors or to a big screen for all to see rather  than transporting a jury out to the scene of the incident or crime.  Attorneys in the past have passed pictures through the jury which, many  times, is worse than no picture at all. Every juror is distracted at a  different time from what is being presented during the trial as they are  passing the picture from juror to juror. The distraction of the jury  members during the trial by passing the evidence through the jury box is  probably the greatest single reason that so many trials end up with a  hung jury and, as a result, it ends up in a very expensive mistrial.  COST EFFECTIVE Tremendous savings of time and expense are made possible  by video. The attorney should never think of video as an added expense  but rather as a cost saving investment by the use of modern technology.  The video recording of expert witnesses explaining to the jury the  extent of a person’s personal injuries and what the victim had to go  through to try to reclaim normal use of their faculties has proven far  more effective than having the plaintiff trying to tell the story  themselves on the witness stand. The same equipment that is used to  project the attorney’s PowerPoint outline during the trial can also be  used to project video evidence for all to see. We find many attorneys  are now using their PowerPoint presentations and video evidence during  opening statements, during the body of the trial and during the closing  statements reinforcing important facts in the minds of the jurors. The  certified professional legal videographer will be able to assist the  attorneys from the very first get-go to the final closing of the trial  (from FILE TO TRIAL.) They are equipped to project the documents,  x-rays, photographs, charts, three dimensional items, and the list goes  on to the big screen. This will save their client’s much expense rather  than producing the traditional “blow-ups” that are commonly being used  in most of the nation’s courts today. PROFESSIONAL LEGAL VIDEOGRAPHY The  properly trained professional certified legal videographer understands  the “disinterested third party” role that they must play when taking  testimony during a deposition. At the same time, they also realize that  they can become a “vital member of the litigating team” when producing  the remaining video documentaries and visual evidence that will be used  prior to or during a trial. When contracting with a professional legal  videographer, the attorney needs to seek out a person that is fully  qualified in all aspects of legal videography, not one that can simply  operate their audio/video equipment. That is the exact reason that the  American Guild of Court Videographers not only trains professional  videographers in producing video evidence that should not be impeached,  but also “Certifies” them as “Certified Deposition Video Specialists”  (CDVS), Certified Video Documentary Specialists (CVDS), or the complete  legal certification which includes both of the aforementioned  certifications, the Certified Court Video Specialist (CCVS) after they  have successfully completed the required training. The AGCV is the only  organization in the world to do so. This is the assurance that the  attorney must have when hiring a certified legal videographer. It will  give you the confidence that you will receive the professional results  that you should expect and demand as the CCVS videographer is fully  qualified to be with you from “conception to completion” of every case.  EXPERTS IN THEIR PROFESSION We see video products every day that very  well could have been impeached and thrown out of court due to violations  in the Federal, State and District Court’s “Rules of Civil Procedure”  and “Rules of Evidence.” Even the very storage and delivery of video  evidence, the required paperwork that accompanies the video evidence and  the proper video shooting techniques are very important and are  strictly regulated. Just because a person owns video equipment does not  in any way imply that they are fully qualified in the legal arena. As a  matter of fact, we will go on to say, if the videographer has not been  properly trained in producing video evidence for the courts, regardless  of the number of years that they have been shooting legal video, they  more than likely are producing a product that very well could be thrown  out of court. The reason it doesn’t happen more often is the attorneys  are depending (and rightly so) on the professional videographer to be  the expert on the subject, not themselves. In just the last year or so,  video equipment has taken a major turn for the better as the certified  professional legal videographer is now producing legal videos on CDs,  DVDs, digital memory chips and on computer hard drives leaving the  analog tape used by the older video formats far behind! What this is  doing for the legal video profession is very exciting. Just as all law  firms have kept a VCR and monitor in their offices, now they are  equipping themselves with much less expensive DVD players to be able to  review video evidence in a digital format. This newly used  state-of-the-art digital equipment saves a great deal of time and  expense in doing post-production editing. Time savings (and time is  money) using digital equipment can result in cutting the time necessary  in post-production by as much as 90%. It also allows the attorney  instant access to specific parts of the testimony when presenting the  evidence in court and doing so at a much higher resolution than has been  possible in the past. ASSISTING THE COURT REPORTER When talking about  equipment, we must not omit the fact that the AGCV certified legal  videographers will many times be taking the testimony under oath with an  additional STEREO audio recorder. This is done as a courtesy for the  stenographic court reporter, if one is being used. This allows the  stenographic court reporter to listen to the deposing attorney on one  track and the deponent on a different track. Now for the first time the  stenographer can listen to each person separately, even when they are  talking at the same time, allowing for a more word perfect  transcription. Another asset the professional certified videographer  brings with them is that most of them are also a Notary Public which  simply means they can swear in the deponent and take the testimony, if  for one reason or another, a stenographic court reporter is not present.  If you practice law in any of the over 40 states that no longer require  that a stenographic court reporter be present, the certified legal  videographer (if a notary or named in the notice that they will take the  testimony by video) can take the testimony and save your client’s  money. If there is need for a printed transcript, it can be taken  directly from the audio or video recording provided by the videographer.  CHANGING EXISTING RECORDINGS Many attorneys today have used video for  many years and have archived their videos on the standard VHS video  tapes. It has been reported that the average VHS video tape has an  expected life of just 7 years. It is also a fact that the manufacturers  of video equipment are discontinuing the manufacturing of video tape  machines and they are expected to become as scarce as the old 8 track  audio tape recorders. This means that even if the tapes last longer than  7 years, there will not be players around to show the tapes in the near  future. The fully qualified legal videographer is capable of  transferring the old VHS tapes to the new digital formats which can have  a life expectancy of over 100 years. The time is now to make the format  transitions for recorded out of date media to digital. CAN “GO ALL THE  WAY” Finally, when training a legal videographer, the AGCV teaches their  Certified Video Specialists to use the “Federal Rules” when they are  asked to produce a video recording of testimony under oath. The express  reason for this is that the product they will produce will be accepted  in any court in the land. This is very important as the attorney trying a  case never knows ahead of time just how far up the judicial ladder the  case will be appealed before it comes to a final resolution (remember  Anna Nicole Smith?) WHEN IT COMES TO COST The AGCV members are usually  the highest paid in the legal video profession and it goes without  saying, they are worth every penny they receive. They have “gone the  extra mile” to assure the legal profession that they will receive  professional results, produced with professional equipment and produced  in a professional manner. We are extremely proud of the professionalism  of the AGCV certified videographers that have invested their time and  money in becoming the “crème de la crème” when it comes to video  evidence that is produced for the courts. For more information you can  contact American Guild of Court Videographers at  www.americanguildofcourtvideographers.com. You will also find a complete  world wide listing of the certified AGCV members at  www.legalvideographers.com. They will be happy to hear from you and they  are offering free consultation regarding your video needs!

 Is High Definition becoming the standard in legal video.

I  am occasionally asked if I shoot depositions in High Definition (HD).  The answer to that question is no, I do not shoot legal video in the HD  format. As HD video becomes more ubiquitous, I expect to be asked that  question more often, so let me explain the reason why I do not see any  value in shooting depositions in HD. First, the predominant method for  delivering video is DVD, which is Standard Definition (SD). In fact, I  have yet to receive a request by an attorney to deliver video on  Blu-Ray, which is used to deliver HD content. That being the case, there  is no point to shoot video in HD if the video is going to be delivered  on DVD because the video will need to be compressed (down-converted) to  the SD format anyway. In addition, the processing time to down-convert  HD to SD video requires much more time, because the file size of HD is  much larger than SD video. If the video is not going to be delivered,  edited, and presented in the true HD format (Progressive 1920x1080 frame  size) then there is no benefit to shooting HD video, in fact the  inverse is true. Second, the screen size of HD video is wide (16:9)  compared to the traditional standard (4:3). For this reason alone HD is  considered undesirable for depositions because the wide screen shows  more clutter and extraneous items in the frame such as lap top  computers, attorneys hands, floating documents, soda cans, etc., and  such items can be distracting to the viewer and thus take them off  point. Third, There is no trial presentation software on the market  today, such as TrialDirector, Sanction and Summation that supports HD  video. In fact, most trial presentation software is still only  compatible with low quality MPEG-1 files (352 x 240 frame size) as  opposed to DVD quality MPEG-2 files (720 x 480 frame size). Fourth,  editing HD video requires a more powerful computer and much more file  storage capacity, which is not always available to law firms. The  storage requirements for HD video is also prohibitive in many cases  since the file size of HD video is exponentially higher than SD video.  From the videographers perspective, file size is also an issue because  recording true HD video requires up to a gigabyte a minute of recording  capacity. To put that into perspective, 120 minutes of MPEG-2 footage  can be burned on a standard 4.7 gigabyte DVD. Most videographers do not  possess the necessary amount of on-site recording/storage capacity to  record back-to-back depositions, so it will become necessary to transfer  or dump the memory to an external hard drive after each deposition, and  usually there is not enough time to facilitate that on a daily basis.  Fifth, there is a huge disparity between the cost of HD video equipment  and processing time, compared to the demand, thus the legal videographer  has no incentive to incur the additional cost or time of processing HD  video. In my opinion, HD video is somewhere between 3 to 5 years before  it becomes prevalent in the legal video arena, especially when it comes  to depositions. The fact of the matter is, for a talking head video such  as a deposition, high resolution SD video is more than suitable. That  being said, there are applications that can benefit from the use of HD  video today, such as Independent-Medical-Examinations, Day-In-The-Life  and Site-Inspections. As I said previously though, If you do not have  the capability to play, store, edit and present High Definition video  there is no reason to have the video shot in High Definition. 

 AZ. U.S. District Court Electronic/Video Courtrooms

United  States District Court District of Arizona Sandra Day O'Connor  Courthouse, Phoenix Brian Lalley, A/V Technologies Specialist  Brian_Lalley@azd.uscourts.gov (email) The District Court of Arizona has  eighteen (18) video capable courtrooms in the Sandra Day O'Connor  Courthouse in Phoenix, Arizona. You may plug in any laptops at either  the lectern position, witness position, or at one of the attorney  connections. Please contact Brian Lalley (see telephone numbers above)  25-30 days before trial/hearing. He will schedule a time for you (and  expert witnesses if necessary) to come to the courthouse to practice  with all of the video equipment that you might use during your time in  the courtroom. Feel free to bring the actual documents, video discs,  computer or any other evidence that you might use in court to ascertain  how it will be presented. Please remember to make requests known to the  judge regarding the Video Equipment you may use in trial at your Rule  16, Pre-Trial conferences. Please ensure that your representative  understands how to send the video signal through the video (VGA or  HDMI)port on your particular laptop/computer. If you are planning on  running a computer from either attorney table, the witness position, or  the lectern the District Court of Arizona will provide one complete set  of cables (audio and video) for one computer at each location. A single  VGA male (video) with a 3.5mm stereo/male (audio) connection and a  single HDMI male connection (audio and video) are present at the  attorney table locations, the witness position, and at the lectern. If  your computer outputs video and/or audio on some other type of  connection besides what is mentioned immediately above, you will be  required to bring your own conversion hardware. The District of Arizona  will only provide the VGA with audio and the HDMI connections for  attorney's use. The following Equipment/Systems are available in each  Video Courtroom: *Computer Monitors for evidence feeds (Attorneys  tables, Jury Box, Witness, etc.) *Computer Inputs (Lectern, Attorney  Tables, Witness Bench) *Document Camera / Visual Presenter / "Elmo" *DVD  (video DVDs only; NOT data DVDs or Video CDs) *Other Video Device  hook-ups (CD, Laser Disk, 2nd Computer, etc.) at Lectern *Pointmaker  Annotation System (Lectern and Witness positions) *Realtime  Transcription System (LIVENOTES, www.livenote.com) *Printer for printing  presented evidence with annotation marks *Portable Video Teleconfernce  Unit (remote witness) in courtroom *Portable Telephonic Conferences (up  to six participants).