Deposition Videographer

[Paul Sedillo]

I am curious what it takes to do deposition (video) work. Having talked with several people, the running comment is that you need to have time code on the tape. From what I understand, Panasonic makes a rig that is built for this type of work. Would the XL1s be able to handle this type of work?

[Bob Zimmerman]

Yes

[Ken Tanaka]

From a lawyer's point of view:
http://www.indatacorp.com/consultants/depovideo.htm

[Paul Sedillo]

Ken,

Thanks for the link. Will give it a look.

[Paul Tauger]

Okay, folks, I took a look at the link and, while some of it is accurate, a lot of it is, frankly, bizarre. Sorry this is so long, but so was the website.

My background: I'm a litigation attorney with 10 years experience, employed as a senior litigator by a major international law firm. I am also an advanced amateur videographer (I do travel videos). I've lost track of the number of depositions I've conducted, but they're in the hundreds. Approximately half of them were videotaped. I do intellectual property litigation -- copyright, trademark and patent infringement actions. Though deposition procedures and techniques should be the same, whether it is expensive and complicated litigation like I do, or more straightforward personal injury or family law matters, the stakes tend to be higher for the cases I work on, the fees and costs tend to be MUCH higher, and the caliber of lawyers I work with and against tends to be quite different than a sole-practioner PI. I really can't speak for what a PI lawyer might prefer at a deposition, but what I describe here is definitely representative of big-firm practice.

Here are a couple of points:

1. Depositions are almost always taken for only two reasons: to discover information relevant to the litigation and/or to preserve testimony for trial. It is usually the latter type of deposition that is taped.

2. Deposition testimony is presented at trial in one of three ways: a lawyer can read the transcript to the jury, reading both the questions and answers (boring!), two lawyers can "play act," one in the witness box reading the answers and the other at the podium reading the questions (only slightly less boring unless the lawyers have had acting training -- as it happens, I have, but most haven't). The best way to present deposition testimony at trial, in my not-very-humble opinion, is by video -- jurors (and judges) are used to watching television, prefer to watch television and if, as sometimes happens, the lawyer gets lucky at the deposition, the witness' reactions to specific questions are far more compelling than the actual answers given. As an example, I once got an expert witness to admit at a deposition that he had committed perjury in a declaration he had previously filed with the court. When I finally pulled the admission out of him, he turned bright red, couldn't look me in the eyes, and with a look of absolute humiliation on his face, admitted what he had done. And, happily for me and my client, I had taped this deposition and had his whole performance on camera (we won the case -- no surprise).

3. With all this in mind, THIS is what's important about a video deposition: the witness must be seen, clearly and without distraction, and the lawyers and the witness must be heard clearly, without distortion. That's all. Here's what I require from the videographers that I hire (and I work with videographers from all over the country in a variety of jurisidictions):

a. Simple backgrounds only!!!!! NO law books. NO paintings. Either a neutral gray backdrop, or a simple "textured" backdrop. No white walls (they can bloom on poorly calibrated court room monitors). Most of the videographers I work with bring a backdrop roughly 4' x 6' which is on a spring metal frame, and can fold/coil up into a small bag. They open the bag, the backdrop pops out, and they lean it on the wall in back of the witness. Sometimes they'll bring a conventional backdrop and stands, but these can be cumbersome.

b. No lighting, ever!!!! I don't care if it makes the shot look better -- I want the witness to forget that he is being taped (this is true whether I am taking or defending the deposition). I want the witness relaxed, comfortable and speaking and acting normally. This means no lights in their eyes, no excess of production equipment, etc. As videographers, feel free to advise the lawyer (the one who hired you!) if there are problems with shadows or reflections -- these can generally be resolved during the setup by switching seats, etc. If the witness looks green because of the flourescent lighting, adjust white balance to correct it.

c. No camera movement of any kind (with one exception): The videographer is preparing a court record, not an artistically-lensed documentary interview. Frame the shot so the witness' face and upper body is visible. I like to include the witness' hands, as nervousness will often express itself through hand movements. Lock in the camera on the tripod. Then don't move! Don't zoom in on the face at dramatic moments. Don't focus on the hands. Don't shoot the other attorneys. Do adjust as necessary if the tripod slips, or the witness makes a dramatic change in position. However, if the witness starts slumping, don't pan down -- I WANT the jury to see the witness' loss of confidence as the deposition progresses. If the witness starts leaning to the right, or shifting around uncomfortably, don't correct for it, let the witness lean to the right of the frame, or sway back and forth -- I WANT the jury to see the witness' discomfort.

Remember, a witness' testimony at deposition is EXACTLY the same as testifying in a court room before the jury -- the only difference is there is no judge present to resolve disputes; the court reporter is the judge surrogate, and will ensure, along with the videographer, that an accurate record is made so that a judge may later resolve any objections, evidentiary disputes, etc.

I always check the videographer's monitor at the start of the deposition, and then periodically during the deposition. Not all lawyers do, but expect the experienced ones to do this.

Now, for the exception to no camera movement:

Occasionally I will hand a witness a physical exhibit (that's lawyerese for a "thing") and ask the witness to explain what it is, how it works, etc. At that point I will say, "Mr./Ms. videographer, could you please zoom in on Exhibt 4 so that we may see what Mr. Witness is indicating." THEN do so -- I'll watch your monitor to make sure I'm happy with the framing. At this point, you do become more of a documentary film maker. You need to listen to the testimony and make sure what you're shooting is what is being described, i.e. if the witness says, "The inverter ring is this thing here, and it slips around the actuator assembly like this," make sure you're shooting the inverter ring, and the shot is framed so that it shows it slipping over the actuator assembly. If you missed it, or even think you missed, feel free to say, "I'm sorry, I think I missed Mr. Witness' explanation" -- I'd rather have the interruption than lose this kind of critical demonstrative testimony.

After the witness is through working with the physical exhibit, I'll say, "Thank you, Mr./Ms. Videographer, we can resume as we were." And the videographer should go back to the previous shot.

From time to time, lawyers will get into disputes during depositions. I'm pretty mellow when I take a deposition (it's calculated -- I like to relax the witness so they'll say things they don't intend). However, not all lawyers work this way. I've had instances in which depositions turn positively ugly. And I've once had a lawyer instruct HIS videographer, "Turn the camera on Mr. Tauger. I want you to videotape Mr. Tauger." And the videographer did. Now, in that particular instance, I let it go -- I was happy to have a video document of the other lawyer's shenanigans, and he was deposing my witness, so I didn't care if the testimony was invalidated. However, I will move to strike ANY video deposition that tapes anything other than the witness (there are a couple of rules of evidence that support this). Of course, the bottom line for the videographer should always be this: do what you're told by the lawyer who is paying your bills.

d. Everybody gets a mike. Who may be present at a deposition is limited by law: parties (and officers of corporate parties), their counsel, their counsel's staff, the court reporter, the videographer, translators and, of course, the witness -- that's the lot. Many videographers only mike those expected to speak, i.e. the lawyers and the witness. I REQUIRE that anyone present (except the court reporter) be miked. This means, at least, a pressure zone mike on the table, as well as lavaliers for the attorneys and witness. However, I'm happier if everyone has a lavalier; I've had instances where adverse parties were talking among themselves and disturbing the witness -- this should have been caught on the record, but the pzm mike didn't get it. This can sometimes mean an awful lot of mikes, as well as a large mixer, if there are multiple parties, the depo is translated, etc. I always tell my videographer when there will be an unusual situation like this, but it's a good idea to ask.

Hint: buy cheap lavaliers. Witnesses and inexperienced lawyers have a nasty habit of forgetting they're wearing one, and getting up and walking away from the table, destroying the mike in the process.

[continued in next post]

[Paul Tauger]

[continued from previous post]

4. About equipment: Here's my opinion -- The standard camera for deposition videography is a Panasonic AG-456 (or, if budget was/is an issue, a 455) or equivalent. An SVHS tape goes in the camera for backup, and the output of the camera goes to an SVHS vcr for the master. Audio for the master comes from the mixing board. Audio for the in-camera backup comes from the on-camera mike. A separate audio cassette is made from the mixer feed. A stand-alone, small (5") video monitor takes its feed from the output of the vcr. The camera is, of course, on a tripod.

This is the _minimum_ gear I consider appropriate for deposition videography. I won't hire you again if you don't have backup for video and audio. Depositions are one-shot deals -- they can't be redone, and are critical. With the setup I've outlined, you have multiple, independent video and audio records, and will always have a backup if something goes sour.

A note about digital cameras: I don't like 'em for depositions for a couple of reasons. First, SVHS gives me 2 hours per tape, DV only one. I don't like to interrupt the flow of the deposition to change tapes too often. However, my primary concern is that digital video is too easily doctored. If authenticity ever becomes an issue, an analogue master can be verified by expert analysis, a digital master cannot.
5. Who's the boss? I don't use "trial consultants" like the author of the website (who, apparently, is NOT a lawyer). I have a litigation support department in my firm that helps prepare trial exhibits and provides support as I direct. I have associate attorneys that work under my direction, and assist me with depositions and trials. I prepare my own witnesses. I pick my own juries. I select my own expert witnesses. My firm bills me out at a fairly obscene hourly rate because my firm and my clients rely entirely and exclusively on my judgment. And I've never lost a trial. With that said, the last thing I want at a deposition is a wannabe Francis Ford Coppola videographer. On a few occassions, I've gotten into arguments (short-lived for obvious reasons) with videographers about camera placement -- I like the camera slightly off to the side, shooting over my left shoulder -- I do NOT want the camera shooting directly across from the witness, with ME off to the side. The reason for this is simple: I want the witness to talk to me, not the camera. I want them to look into my eyes, and I want to look into theirs. An important part of what I do is guide the witness (some might prefer the word "manipulate") so that I get the testimony that I need in the form that I need it. To do this, I want _nothing_ coming between me and the witness. I don't care if the videographer thinks it will look better with the camera one place or another -- _I_ decide where it goes, and I'll live with the results. The three videographers who didn't like my opinion about camera placement don't do depositions for me any more. In one case, the videographer was fired on the spot and another videographer was sent out to replace him.

It's critical to remember that, from start to finish, it's the lawyer's behind that's on the line -- if my client wins, it's my doing. If my client loses, it's my doing. I'm the director, the producer -- I am god -- of the deposition.

Which brings up another point that no one will ever tell you about, until it actually happens. As I said, most depositions are pretty mellow, even boring, events. Occassionally, though, some lawyers get out of hand -- it may be because they are abusive (sadly, this is becoming more frequent), or because they have given an improper and/or illegal instruction to their client/witness. I have, on several occassions, had to terminate a deposition before it was over. As a matter of law, this means suspending the proceeding and taking the dispute before a magisgtrate judge (which sometimes can be done on the spot with a phone call, though usually requires a separate court hearing weeks later). When I say, "This deposition is over -- please close the record," I'm not kidding. I expect the videographer to take us off the record and the court reporter to close the transcript. I do not expect to be ignored, argued with, or asked, "are you sure?" Again, all responsibility lies with the attorney -- if he/she takes this drastic step, just follow instructions, pack up and leave with him/her.

6. A word about editing: For me, it's very simple -- the videographer will never have to do any editing, and will only provide certified copies and the complete video master. If I want "testimony excerpts" prepared, I'll either have it done in house (or even do it myself), or send it out to a production house (there's no reason why the videographer can't also provide production services, but these are two entirely separate activities). However, most times, I will want the video transcoded to mpeg1 and placed on VCDs, which are linked to the ASCII text of the deposition transcript. I've already discussed how lawyers can put depositions before the judge or the jury. I didn't mention the mechanics of evidence introduction for depositions. Simply, the lawyer says, "Your honor, I would like to read from the deposition of Mr. Smith, at page 14, lines 18 through 24." The lawyer then pauses, while the opposing counsel looks at the portion of the record referenced and raises any relevant objections. If there are no objections, the lawyer can then proceed with placing the referenced section of the deposition on the record. With the latest technology, available in litigation support programs like VideoNote and Summation, I can now say, "Your honor, I would like to SHOW the jury Mr. Smith's deposition at page 14, lines 18 through 24." After the review and objections pause, my litigation paralegal can then place on the court room TV monitors the exact question and answer from the video deposition -- the software finds the right spot on the VCD and then plays it. For this reason, I rarely, if ever, do a video deposition excerpt tape -- it simply isn't necessary. I'll only do it if I'm confident I will need only one single section from a deposition (and this is very rare, since deposition testimony is extremely useful for impeachment).

Preparing synced video like this does not, to the best of my knowledge, require time code. The linkage is done manually, line-by-line, once the video is transcoded to mpeg1.

Okay, sorry to go on so long about this, but I thought some people might find it useful to hear it from the horse's mouth. This is by no means a complete discussion of what a videographer should or should not do during a deposition, but covers the major points.

[Paul Sedillo]

Paul,

Outstanding post! Thank you for taking the time to document this subject. It is great to hear from somebody who has such a wealth of experience.

Again thank you!

[Tim Joseph]

How do you get into this line of work? Would I just send out letters offering my services or would I want to get to know the lawyer first and then offer my services?

Thank you for the post. It was very informative!

[Paul Tauger]

I hire videographers through court reporting services. These are "one stop" contractors who will provide a court reporter, a videographer and, if I'm out of town and don't have a local counsel, an office in which to take the deposition (though often I'll use conference rooms in hotels for this purpose). I don't hire videographers directly (well, I do on very rare occassions, and they're always people I've worked with before -- I always ask for cards from the videographers that I've liked and keep them on file). The major services, which are nationwide, include Esquire, Barkley and Legal Link.

I suspect, it is simply a matter of contacting the court reporting sevices in your area, providing a resume, and getting on there call lists. Know, though, that there are certain things that a videographer must do, beside actually make the physical video record. The videographer must caption the deposition -- it's a fairly simple script that identifies the matter, the location, the videographer, the witness, the attorneys, etc. There's "magic language" for this, but it's easy to get, and quite straight forward. The videographer also has to track remaining time, provide notice (via cue cards) to the attorney that 5 minutes remain, then 1 minute, etc.

I understand there are a couple of entites that purport to be "certifying" agencies for videographers. To the best of my knowledge, unlike a court reporter, there is _no_ requirement for certification -- at least in any of the courts in which I practice, e.g. all the federal courts in the US, and the California state court. However, certification _may_ be a sufficient credential to get you staretd with a court reporting service.

As for contacting lawyers directly, that wouldn't work for big firm practice, though it might for solo practioners -- I suppose it depends on how often they take depostions, since scheduling could be an issue.

[Don Parrish]

I looked into this occupation to increase my video income. I am sure Paul and others will correct me if I am wrong, but this is what I have learned. There is some additional respect for deposition videographers who have had some schooling or seminars or certifications on these events. Plus, schooling offers you confidence and experience. Some websites will say that certification is necessary but I do not know if this is law ( state or otherwise), It may however be an arguable point for an attorney.
I would never attempt this without seeing, and knowing exactly what I was doing, there may be some legalities about the proceeding you are expected to accomplish (paperwork or verbal statements) and some attorneys may not expect to have to oversee your side of the event. You must, must know every knob, button, and ability on your camera before doing this, and to be that familiar with your camera means you are probably good with it. I would find some way to train with another videographer, I am not scared of depositions, but in the video industry your name is all you have and screwing up a deposition would end your being hired again. Learn audio systems upside down and inside out until you can configure them in your sleep. Last but not least, do a lot of research before buying into one of the internet courses on this subject, I am not sure that they would provide someone with everything they need to know. here is a link I started with, on the right side of the page is a link for videographers. hope this helps.

http://www.ncraonline.org/

[Todd Mattson]

I just attended the CLVS (certified legal video specialist) seminar held in Arizona last week. Although the equipment classes were rudimentary, the business and legal classes proved to be worthwhile. To answer the original poster's question about the XL1, no it won't work, and here's why. On a legal video you need to have a time / date stamp and NOT and I repeat NOT SMPTE time code. Unfortunately, the XL1 cannot separate these two display functions, either on playback or on record. This leaves you with two options. An outboard time/date generator and dv deck (YUK, who wants to buy that these days) or get a camera like the Panasonic AG-DVX100, which can separate between the two, meaning you can look at the SMPTE time code along with other functions, while still only sending the time/date to your output. Do take it from me as I am in the exact same boat you are with the Canon, as now I am planning to sell mine.

[Ken Tanaka]

Thank you for the follow-up, Todd. BTW, your remarks also apply to the GL2 which, as we discovered in another thread, also cannot burn the full date and time onto a tape.

Just for the sake of accuracy here I'll add that none of the Canon video cameras capture or display true SMPTE time codes. They use basically DV time code which is essentaily record time on the tape.

[Mike Rehmus]

Todd,

Why not buy a VCR that will record that information on the tape? Or buy a Horita that will allow you to add both plus up to 20 characters. List is just under $400 which is a lot less than the hit you will take on selling your camera.

The legal folks want VHS anyway from what I can see.

BTW, I looked at that class you took but they want Associate Members to be sponsored by a full member and wait 6 months before they can take the course. Then another period of time before they can take the test. Is that correct or am I all wet?

[Todd Mattson]

You need to have a VCR with you as well as having the tape from in camera. My question was, did I want to buy an outboard date/time generator? No, that's pretty much useless money spent, for me at least. When if I traded in my camera and combined that with the cost of an outboard generator, there's only about $500 in difference to the purchase price of the DVX. Already that amount has been ofset for me by picking up a music video gig that I may not have gotten before getting the DVX. Plus, I'm very anxious to use the camera in making a digital feature over the summer with it.

Back to depos, the gear you'll need for doing depositions includes a camera capable of separating date/time from SMPTE (or a camera with a date/time generator), VCR, audio mixer, cassette recorder, 4 lav mikes, good tripod, a neutral portable background (got mine from Denny company), and optionally two PZM mikes. Yeah, you've got to have a VHS master, but the idea is to have two masters, one from in camera, one from the VCR. You'll also need some way of making VHS copies, and depending on if you want to go into courtroom playback, or if you are even in a market that hasn't installed monitors in the courtrooms already, you will need to either have a rental plan or access to three monitors, one for the attorneys (19"+), one for the jury (13"+), and one for the judge (9"+).

As far as needing a sponsor, that's the first I've heard of that, and I'm taking the written test this weekend. So I guess you're "all wet" on that aspect, but you said it it, not me. As far as how long it takes, well you attend the weekend seminar, and a few months later you take the written test, and about six months later you take the hands-on test. So it does take about nine months all told.

[Mike Rehmus]

It will be interesting to hear how your test goes and what help the organization gives you.

I was just sworn in as a Notary Public today and I can now 'legally' do deps in California. Now to scare up some business.