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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 --~4. isa 1402 American Bar Association Journal

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