Since the early 1990s the use of multimedia presentations at trial, particularly video productions, has grown exponentially. Successful litigators have discovered that using visuals with their persuasive words gives them a distinct advantage in presenting their case to a jury. In this article we describe some of the different uses for audiovisual depositions in pre-trial mediation and courtroom presentation, share tips on ways to prepare your witness and deposition space for maximum effect and describe some of the presentation options available in Massachusetts courtrooms.
Hearing a witness’s sworn testimony recited by a stand-in does not allow a jury to effectively interpret whether an answer is belligerent, hesitant or genuine. And displaying the printed word cannot show if a witness is confused, hostile or earnest in a deposition response. So, perhaps not surprisingly, the most common type of video presentation viewed in court is the videotaped deposition, which certainly can communicate much more than a transcript alone. It adds the additional communication of vocal tone, inflection and witness demeanor.
Hearing and seeing testimony from a witness can add credibility to a crucial report if an expert looks and sounds competent and trustworthy. It can also go a long way towards impeaching a witness’s credibility if that witness appears uncomfortable or contemptuous. As a picture is worth a thousand words, a moving picture can bring words to life.
There are many reasons to capture testimony for viewing. Economic reasons include the opportunity to save money by preserving the testimony of a paid expert to be played any time during trial rather than having them wait in the gallery or hallway until they are called. Medical experts oftentimes will not agree to appear in person for less than a full day’s fee because of the disruption it may cause to their schedules. Video depositions are a useful tool when dealing with out-of-state or otherwise unavailable witnesses. And by having videotaped testimony available during trial, potentially costly delays can be eliminated and valuable court time can be used to full effect.
Videotaped testimony can be a very useful tool even when a witness will appear live before the jury. Video clips from depositions can be used to impeach live testimony when answers differ from what was said under oath during discovery. It is very startling to a jury to see a witness contradict themselves, and much more effective than simply asking them to read aloud their prior testimony. And with modern presentation tools the editing and playing of video clips can be almost instantaneous. With a few clicks of a mouse, transcripts can be searched, testimony highlighted, and video clips created and played to dramatic effect.
How Does It Look?
But just showing a moving picture is not enough. How that picture and the elements it contains look can influence an audience to take action, in either a positive or negative way. A poorly produced video can distract the audience from the message and defeat the purpose for showing it. When planning for an audiovisual deposition, much care should be given to the surroundings and to the look and actions of the witness. You need to conduct your examination in an environment free from distractions in a space with enough room to accommodate not only a witness, court reporter and counsel, but also a videographer and all the necessary equipment. The space should have adequate, even lighting so no additional lighting instruments are needed, as they tend to be bulky and give off a tremendous amount of heat. If a room with outside windows is used, then shades over the windows might be necessary to prevent too much sunlight from adding unwanted shadows or hot spots to the picture. A quiet location is a must as microphones will be used to capture the audio and can also capture distracting noises from inside and outside the room. Setting the witness against a blank wall or neutral backdrop will eliminate distractions from the picture. While you may be tempted to use a bookshelf full of law books or artwork as a background, avoid this as the shelves or other objects may look as if they are growing out of the witness’ ears and distract the jury from the testimony. Eliminate clutter from the table such as water pitchers and glasses or piles of paper as these can also draw attention away from the testimony. You need to check the picture the videographer is shooting to make sure nothing in the frame can distract the viewer from paying attention to the testimony.
The most important element of the audiovisual deposition is the audio. That’s why it comes first in the name. It is up to your professional legal videographer to produce the finest possible program by using the proper equipment and recording techniques. The only way a professional can make sure the audio is being recorded properly is to monitor the signal, both visually through V/U (volume unit) meters at both the microphone mixer and the camera and by listening to the mix at the recording medium. Do not allow your videographer to use any automatic gain control features, either for picture or audio recording as those features will produce poor quality video productions. A professional videographer with professional tools will have the knowledge and capability to make a first rate, near broadcast quality program. Trust a locally owned and operated court reporting or legal video production firm to get you the best quality product from stenographers and videographers who know your needs.
As for your witness, have them dress in a comfortable and professional manner. Ask them to dress as though they will actually be in the courtroom, keeping in mind that jurors will judge the believability, credibility and likeability of your witness within the first few seconds of seeing them. Avoid loud ties, checks or bold stripes as these fabrics can become distorted on screen. Also, make sure they do not wear noisy jewelry as the microphones will pick up the sound and could actually drown out the words being spoken by the witness. Solid black and white fabrics can play havoc with exposure and contrast in the picture. Pastel shades, particularly light blue, work well and provide for a pleasing color balance. Make sure all cell phones are turned off, not just set to vibrate, as these devices have a tendency to interfere with the audio signal being recorded. As a rule of thumb, if you wouldn’t have the device turned on in a courtroom, don’t leave it on in the deposition location.
As to how a witness should conduct themselves during examination, make sure they act naturally. Exaggerated motions, leaning back or rocking in their chair, or stiff rigid posture can convey to a jury a sense that the person speaking cannot be trusted or has something to hide. A relaxed posture, with feet on the ground and the torso leaning slightly forward, can display earnestness and a sense that the witness is listening intently to the questions and is serious about giving a straightforward, honest answer. Instruct your witness not to look directly at the camera, but rather at the questioner. Or, if they are being asked to testify about a document, have them look at the paper in front of them. Remind your witness that they must always allow the question to be asked, and allow time for an objection to be lodged before they answer. Just as a court reporter cannot record two voices at once, a video editor cannot cut out an objection when the answer to the question is being stated at the same time.
What Is the Best Depo Video Format?
Once the deposition has been taken and you are packing up to leave, your videographer will ask you for your copy order. Just as the court reporter offers different formats for your convenience, so too does the videographer. When I started videotaping depositions there was only one format available, the VHS tape. With the eruption of technology in the modern law office, the choice of formats has expanded. Now a video can be delivered on digital media in the form of CD-ROMs, TV-DVDs, Digital Video Transcript (DVT) disks and even delivered streaming over a secure Internet connection.
If you plan to use the deposition video at trial, the most effective format is the Digital Video Transcript. With a DVT the reporter’s official transcript is synchronized to the video file, linking the printed word with the spoken testimony. With the testimony synched you can easily search for segments to view without having to fast forward or rewind a tape while stopping to find your place in the paper record. Simply highlight the first line of testimony you wish to view and double click on the highlight. The video will automatically be cued up to that portion of the proceedings and you can play the video from there. Most DVT disks will contain a software program which will allow the user to conduct keyword searches, index searches and basic video editing functions. You can highlight a section of testimony, and, using the easy to follow instructions, create a video clip that can be exported into trial presentation or multi-media presentation software, can be saved to a hard drive or portable media for later viewing, or can be encoded into a file small enough to be e-mailed to a client or colleague for viewing. Just recently I helped a client prepare a mediation brief in electronic file format and embeded deposition video clips wherever transcript testimony was cited, with a thumbnail icon hyperlinked to start the video when clicked. The mediator was sent a printed copy of the brief as well as a CD with the computer version. Edited video clips can be combined into a presentation in any order and used at trial. Rather than show a jury eight or more hours of video testimony you can create a quick and effective presentation without all of the pauses, non-responsive answers and stated objections that can be prevalent during a long deposition. And all of these processes can be accomplished by even the most basic computer user. You don’t have to be a professional video editor to make great presentations.
Tips from the Courtroom Roadies
In Massachusetts, we are fortunate to have a wide variety of architectural and technological styles at use in the court systems. From the modern U. S. District Court building on Fan Pier in Boston to the other end of the spectrum, the Charles Bulfinch-designed Essex County Superior Courthouse, built in 1805 in the Newburyport, the design and usage of technical presentations are subject to the various venue capabilities. These capabilities must be kept in mind when planning and implementing your trial technology. These tips should come in handy for any location where you may practice. They have been gathered through much trial and error throughout the past two decades.
Oh, say can you see
There is a wide range of display equipment to choose from when designing a courtroom presentation. Some buildings are designed with technology in mind, such as the U. S. District Court in Boston, where courtrooms there are equipped with state of the art presentation tools. These include individual computer monitors in the jury box, the bench and on counsel tables; telestrator touch-screen monitors on the witness stand and counsel podium; and audio-visual playback devices built in to the room. Attorneys are invited to make the most of the equipment and use their technology to full advantage. In other venues, particularly at the State Superior Court level, display equipment must be brought in because nothing is available in the courtroom but electrical outlets (and many times, very few outlets at that.) When planning for display equipment, care must be given as to the layout of the courtroom. In order for all jurors to have an unobstructed view of the visual evidence, oftentimes counsel will find their options to be limited. We have had the greatest success using small video/computer projectors and large, portable movie screens. Not only can they be used in confined spaces, but by having one place for all the jurors to focus their attention, counsel can often control where the members of the panel look as well as the amount of time they spend studying the evidence.
We also recommend using of the “rule of threes”. For example, if the witness stand is to the right of the jury box and the counsel podium is to the left, position the display screen in the center, directly across from the jury box. That way the attention of the panel can go from question, to display to answer without having to focus attention somewhere out of this visual arc. And if a deposition video is to be played, then jurors do not have to look at an awkward angle or crane their necks to get a good look at the picture. The care and comfort of the jury should be foremost in the mind of the presentation technician and the layout of the room and equipment will go a long way towards maximizing your use of the technology.
A successful litigator must wear many hats and develop and master many diverse skills. Investigator, counselor, legal expert and, most of all, teacher. These are just some of the things you must become and talents you need to successfully advocate for your client. As with any discipline, tools are available to make the job easier. Video technology is one such tool, and by using the technology you can bring to life your thoughts and words and create a vivid image in the minds of your jurors. By capturing their attention and teaching them everything they need to make an informed, just decision, you will have done your job to the best of your ability and find success in your endeavors.
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Ian A. McWilliams is a videographer, trial presentation technician and member of the American Society of Trial Consultant. He helps Trial Attorneys present their evidence in venues throughout the United States. And in 2005 he was dubbed Captain Video by the Hon. Carol S. Ball during a civil trial in Suffolk Superior Court.