If a deposition isn’t worth videotaping, it’s not worth taking. Videotaping a deposition shows the witness’s facial expressions, body language, changes in the inflection in the witness’s tone of voice and pauses before answering—the kind of stuff that will never show up on a transcript. Defense counsel are less likely to disregard the rules of depositions because they know you are videotaping them and the jury will pay a lot more attention to the video of a deposition.
If videotaping a deposition is ten times more powerful than reading a transcript of a deposition at trial, why do so few plaintiffs’ lawyers videotape depositions? MONEY. Plaintiffs’ lawyers don’t want to spend a few extra $ to videotape depositions and it’s easy to understand why: videotaping can add $400-$600 to the cost of a deposition. There’s a solution and it doesn’t cost a penny.
Videotape your depositions without a videographer. Some states, such as California, require that the video operator be a notary public, but there are no rules prohibiting a lawyer from operating the camcorder at the deposition. To videotape your depositions without a videographer, you only need a camcorder (or iPad), basic skills in operating the camcorder and an understanding of the rules in your state that apply to videotaping depositions.
This is a crash course for videotaping your first deposition…and saving a bunch of cash.
Introduction at the Beginning of the Videotape Deposition
In New York, the rules for videotaping a deposition are set forth in Section 202.15 of the Uniform Rules of Trial Courts. You begin the video deposition by making the following statement on the record:
“We are on the record.
Today is [date], the time is approximately [time].
The location is [location that testimony is being taken].
This is index number [index #], captioned , and the venue is [court and venue].
The deponent is [name and title], and this testimony has been noticed by [plaintiff or defendant].
Would counsel and all present please identify themselves for the record.
Would the court reporter please administer the oath or affirmation at this time.”
Going “On” and “Off” the Record
When you go on and off the record, you must make the following statements:
Going Off the Record at a Break: “We are going off the record at approximately [time].”
Going Back on the Record after a Break: “We are back on the record at approximately [time].”
At the End of the Deposition: At the end of the video deposition, you must give the witness the opportunity to watch the video of the deposition. Uniform Rules of Trial Courts section 202.15(d)(4). You should tell the witness/deponent: “You have the right to watch the video of the deposition. Do you wish to watch the video or waive your right?”
Ask all parties if we may conclude the deposition. Once all parties agree:
“Having heard the approval of all parties, this concludes the deposition of [name and title]. We are now going off the record at approximately [date and time].”
Setting Up for the Video Deposition
Arrive at the deposition location at least 30 minutes early to set up.
Position the Camcorder: The camcorder will be positioned on top of a tripod and the camera should be positioned just above the witness’s eye level. As the operator, position the camcorder so that you are shooting across the table (as opposed to down the length of the table). You should be able to see the screen on the camcorder at all times to make sure it’s recording.
Put the Camcorder in Automatic Function: The camcorder should be preconfigured so you don’t have to worry about exposure, white balance or focus, i.e., the camera should be in automatic function. The audiometer on the camcorder shows that sound is being received by the camcorder.
Microphones & Audio Mixer: There are three lavalier microphones that connect to the audio mixer (the audio mixer needs external power source just like camcorder).
- Lavalier microphone #1 is for the plaintiffs’ lawyer (you),
- Lavalier microphone #2 is for the witness/deponent, and
- Table microphone (microphone #3) is for the defense lawyers.
When the defense lawyers speak, rotate the table microphone (microphone #3) in the direction of the lawyer who is speaking.
Sound Check: At all times, you must be able to see video screen of camcorder. The audiometer on the video screen of the camcorder will show that the audio is being received by the camcorder. Before you begin the deposition, listen to the audio through the audio jack on the camcorder to ensure the audio is being received and recorded by the camcorder (a/k/a the “sound check”).
Preserving the Video
Recording the Video on Memory Cards: The camcorder should have 2 slots for memory cards, which simultaneously records the video on two memory cards. If one memory card goes bad, you’ve got the other one as a backup.
Preserving the Video on an External Hard Drive: Once the video deposition is over, transfer the video from the smart cards onto an external hard drive and then place the external hard drive in a fire-proof box in a vault. An external hard drive with 4 TB of memory will save about 2 years of video depositions.
All of the Equipment You Need
New York requires a video camera that contains a date and time stamp that is visible on the screen at all times. Other than this requirement, your video equipment will consist of: (a) camcorder (or iPad), (b) camcorder power cords, (c) sound/audio mixer, and (d) microphones and cables.
Here’s the kit our video expert, Mark Whalen of Litigraphics, LLC, recommends:
- JVC GY-HM170 camcorder with extra battery
- Rolls MoreMics audio mixer
- Additional camcorder battery and wall charger
- Shure SM93 lavalier microphone (2)
- Audio Technica 891 boundary microphone for defense attorneys
- 32 GB SDHC cards (2) (reusable, but good for about 6 hours of continuous recording)
- Pelican SDHC card case,
- Lowepro Slingshot backpack
- 15’ XLR audio cable,
- Pelican Storm iM2500 case with Trekpak divider
- f/64 tripod shoulder bag
- Impact 6’ background stands
- Extension cord, power strip, and background clamps
- Botero gray photo background
The equipment costs about $1,500, or the cost of videotaping three depositions with a videographer. Just videotape three depositions, and the equipment pays for itself.
BTW, Mark Whalen is the premier video expert for trial presentation. If you get a chance to work with Mark, just do it!