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Video depositions can be a compelling trial tool

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Indiana Lawyer Focus

Like a pesky fly that buzzes around the room incessantly, the question kept being asked and no amount of answering would chase it away.

“Where did the idea come from?” “Where did you get the idea for your invention?” “How did you think of this mechanism?”

The deposition was becoming tedious with the inventor, only fluent in Russian, trying to explain the origin of his creativity while the interpreters searched for the words to properly translate what was being said.

video-stevengroth-7-15col.jpg Bose McKinney & Evans LLP partner Steven Groth (center, right) demonstrates a video deposition. Attorneys say cameras capture the body language and vocal inflections that witnesses exhibit while being deposed. (IL Photo/Eric Learned)

Finally, the inventor stood up, tilted his head back and raised his arms to the ceiling. To the persistent question of, “How did you think of making this device?” his body language answered, “From God.”

Videographer Pete Zinkan captured the entire episode with his camera. Although a court reporter could also have recorded the incident, a juror would have more clearly understood the inventor’s meaning by watching the video clip rather than by seeing an attorney reenact the response in a courtroom.

The ability to catch the nonverbal messages and vocal inflections made by witnesses and experts are the biggest benefits to videotaping depositions, attorneys say. A slouch, a gulp, a snide tone of voice can bring added meaning to the testimony that cannot be conveyed through a cold reading of the transcript.

Judge Ken Johnson, master commissioner for the Marion Superior Mass Tort Docket, does not believe that showing a video segment as opposed to reading from the deposition transcript could bias a jury. So many elements can be part of a trial that attributing a verdict solely to the video deposition is difficult.

groth-steve-mug Groth

Johnson applauds the use of video depositions at trial. The digital tape can be edited so the objections, arguments and inadmissible statements which can confuse or improperly influence jury members are removed before the video is shown in court. Also, the film can improve the efficiency of the trial since the testimony of the expert can be played at will instead of wasting time waiting for that individual to arrive.

“I think they are great in every way especially because jurors can see the person, can see how they react and see their face,” Johnson said. “Video depositions are a hundred times better than hard copy depositions.”

Paper versus picture

Not all depositions need to be taped, attorneys say. Non-party witnesses who provide factual information but are not especially significant to the case likely will not be recorded on video.

Still, the use of cameras to record depositions has been increasing. Bose McKinney & Evans LLP partner Steven Groth sees two primary drivers behind the growth.

The first reason is the powerful tool that video depositions can provide to impeach a witness at trial. Any time an individual says something on the stand that is inconsistent with what he or she said while being deposed, the attorney can just hit the play button and instantly the jury can see and hear the witness on a screen in the courtroom.

The second reason is sophisticated clients want the depositions taped so they can watch later. Executives and business professionals who understand the legal process want to see the video to do their own evaluation of the case.

Relying only on the attorney’s description may not provide the information that the client wants, Groth said. But the video shows exactly what happened.

ladendorf-mark-mug Ladendorf

Video technology is also providing attorneys with a long-distance conferencing option. The lawyers can walk to their offices’ meeting rooms and depose a witness or expert who is across the state or across the country.

Mark Ladendorf of Ladendorf Law said video conferencing saves time and money. Conferencing does not work as well for depositions that are expected to last all day or that will be especially complex, he said, but in many instances the video link is just as good as being there in person.

As an example, he pointed to a lawsuit involving an elderly couple he represented who had been in an accident in West Virginia. Since travel was difficult for the couple, Ladendorf and opposing counsel agreed to do the deposition via video.

The video of the witness in West Virginia was transmitted to a screen in the Indianapolis conference room where Ladendorf sat with his clients. Likewise the parties in the Mountain State could see the Hoosier group on a monitor at their offices.

“We saved two days of travel, we saved two days of expenses, we saved a flight and my clients got to go home two hours after the deposition,” Ladendorf said.

Technological advances

Johnson remembered when video depositions first appeared in the early 1980s. They were rarely used in court because the image was grainy and the sound bounced in and out.

Since then, the technology has improved so much that attorneys are using video more and more, Johnson said.

Listing the array of microphones along with the mixer, camera and computer that he uses when recording a deposition, Zinkan compared his work to that of a pilot – hours of boredom interrupted by a sudden emergency that needs to be fixed immediately.

He will wear a set of headphones and keep his eyes scanning the instruments, watching the needles to catch any disruptions. Sound, Zinkan said, is as important as the picture, so any audio interference has to be corrected to allow the jury to be able to understand what the witness is saying.

“It’s the details that videographers need to pay attention to,” Zinkan said.

After the deposition is completed, Zinkan goes back to his studio and syncs the written transcript with the video. The final product will display the image of the witness with the written statements appearing at the bottom of the screen.

vink-paul-mug Vink

The video camera does not change the way lawyers and witnesses interact in a deposition or impact the way lawyers prepare a case.

Yet, Paul Vink, partner at Bose McKinney & Evans LLP, said attorneys do need to be mindful that the video could be shown at trial. Regardless of how smart and polished a witness may be in court, opposing counsel will find a way to get the recording admitted at trial if that same witness was combative, smug or bumbling during the deposition.

And just like he advises before a trial, Vink reminds his witnesses before a video deposition to be polite, articulate and try to answer questions the same way as they would in front of a judge and jury because the tape may be played in court.

Juries remember what they see on the screen, Vink said. Watching a deposition video of witnesses contradicting what they just said in court or angrily lashing out the opposing party will be more compelling and memorable for the jury than listening to an attorney read the deposition transcript aloud.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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