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68 A.B.A. J. 1402 (1982)
Videotaped Depositions: Putting Absent Witnesses in Court

handle is hein.journals/abaj68 and id is 1402 raw text is: By Thomas J. Murray, Jr.
EVERY lawyer who litigates encounters
the situation in which an important
witness is unavailable for trial. Expert
witnesses, particularly physicians, are
often impossible to schedule. Key oc-
currence witnesses occasionally are
beyond subpoena power or unable to
appear at trial. Even litigants, as in the
case of a catastrophically injured
plaintiff, are sometimes disabled from
coming to court.
The traditional method for obtaining
the testimony of unavailable witnesses
has been the stenographically recorded
deposition. Written depositions, how-
ever, have some disadvantages. The
demeanor of a witness, which may be
as important in conveying credibility as
words, is substantially lost in the proc-
ess of reading back disembodied words
from a printed transcript. The ability to
keep the presentation interesting and
informative and to help a witness ex-
plain oral testimony by using de-
monstrative evidence is inherently
limited by the written deposition. The
process of reading a deposition in court
is at best tedious and at worst, as one
judge put it, an act of contributory
somnolence.
As part of the expanding partnership
between law and technology, lawyers
are turning increasingly to vid-
eotape to escape these draw-
backs. Rules in most juris-
dictions now permit video
recordings either as an alter-
native to or in conjunction
with the written method.
This development, however,
represents more than a
procedural change. Video
transforms a deposition
setting into an exten-
sion of the courtroom.
Cameras and microphones
become surrogate eyes and ears that
allow the trier of fact to study the per-
sonality and demeanor of the unavail-
able witness. Demonstrative evidence,
so vital to the task of educating and
persuading courts and juries, can be
integrated into the oral examination as
though the proceedings were taking
place in court. A well-done video pre-
sentation may serve as a stimulating
change of pace in a trial, particularly
when proper procedures have been
used to edit out objections and delays
that often slow live courtroom pro-
ceedings to a snail's pace. In short,
video transforms evidence depositions
from a necessary evil into an exciting

opportunity for advocacy unheard of in
traditional deposition practice.
That, in theory at least, is what a
video deposition should be and do. To
exploit fully the potential benefits of
video technology, however, requires
that lawyers shed some old habits of
thought and method. When testimony
is videotaped and replayed at trial, it is
as if the examination were being tele-
cast live over the airways to the court-
room. The term deposition, which
the legal dictionaries define as tes-
timony of a witness taken out of court
and reduced to writing to be used upon
trial of an action in court, becomes a
misnomer because everything that
happens before the cameras happens
in court. And the term videotaped
deposition is not a more apt descrip-
tion because the videotape itself serves
only as a storage place for the light and
sound signals until they are recalled
and projected on the television screen
at trial.
This means that lawyers should ap-
proach the tetzotding of a video deposi-
tion for what it is- a TV production.
Unlike the traditional procedure in
which all one needed to do was hire a
court reporter, video greatly expands
the role of the lawyer in the record-
making proe ts. As the deposition pro-

ponent, it is the lawyer's responsibility
to select a suitable, properly lighted lo-
cation and to see that the equipment,
people, and recording system necessary
for a quality production are available
and in place before the deposition be-
gins. If the production is so amateurish
that the disparity between the video
presentation and what people are ac-
customed to by way of TV is striking,
there may be a serious detraction from
the impact of the content. A poorly
done recording, moreover, will reflect
unfavorably on the competence and
professionalism of the attorney offering
the deposition, thereby damaging his or
her credibility.
Too many video depositions end up
looking like home movies. A basic rea-
son for this is a lack of knowledge and
experience within the legal profession
about the art and method of working
with video. Lawyers need to consider
some commonly encountered problems
of procedure, production, and tech-
nique and some suggestions for dealing
with them.
Procedure
The 1970 amendments to the Federal
Rules of Civil Procedure established the
authoritative base for audiovisual
depositions. The federal approach is to

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1402 American Bar Association Journal

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