"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).