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.

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.

Arizona Rule 28 Stipulation

To comply with the Rules of Procedure and to clarify the record, our videographers will now state prior to the introduction the following stipulation: "To comply with Arizona Rule 28, it is agreeable by all parties including the court reporter, that the videographer read the introduction, conclusion and retain all videotapes, or so state an objection now."

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

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.

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)

Arizona Rule 30(b)(4)

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.

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.

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.

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.

Arizona Rule 28

Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States, the State of Arizona, or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. Depositions may be taken in this state or anywhere upon notice provided by these Rules without a commission, letters rogatory or other writ. The term officer as used in Rules 30, 31 and 32 includes a person appointed by the court or designated by the parties under Rule 29. Upon proof that the notice to take a deposition outside this state has been given as provided by these Rules, the party seeking such deposition may, but is not required, after one full day's notice to the other parties, have issued by the clerk, in the form given in such notice, a commission or letters rogatory or other like writ either in lieu of the notice to take the deposition or supplementary thereto. Failure to file written objections to such form before or at the time of its issuance shall be a waiver of any objection thereto. Any objection shall be heard and determined forthwith by the court or judge thereof.

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."

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."

Blackberrys / Cell 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.

Testimonials:

""VideoDep has provided excellent videotaping services at depositions for me for over 10 years. Not only do they provide fast and reliable local service, but we utilize their services when ..." Read More

- Preston H. Longino, Esq., LAW OFFICE OF PRESTON H. LONGINO, P.C.

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