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!
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