Attorneys often ask me, “Do you think this works? Will the jury ‘get it’?” The question may follow taping of a complex video deposition for trial or when planning a “day-in-the-life” video documenting a client’s everyday challenges, pain, and suffering. The oft-expressed concern is that jurors’ attention may wane if video evidence becomes tedious.

Novice or home video is everywhere, and producing a video might seem simple enough. Get a camcorder and microphone, point, shoot … and hope the footage works. But professional video production for litigation is held to a higher standard – or should be – because so much rides on the finished product.

Video depositions are common in all types of litigation, for discovery and for trial when a witness cannot appear in court. Day-in-the-life documentaries are used primarily in personal injury law but may be used in any case in which a litigant or subject of litigation is best seen and explained or demonstrated to a judge or jury.

To capture video’s full potential, it is important for attorneys to understand basic elements of professional video production. This article touches on several of those elements in both video depositions and day-in-the-life documentaries.

Video Depositions

It might be difficult to remember a time when there were no video depositions – when testimony was confined to words on a written page. Although video depositions are now standard in a broad range of litigation, an effective video deposition requires attention to details that are often ignored. When a video is intended for trial, always assume an attentive audience – the jury – will be watching. Lose that attention because of a poorly executed video … and risk losing your case.

On-camera pitfalls include extended pauses, searches for exhibits, colloquy with cocounsel or opposing counsel, ringing cell phones: all as the camera rolls, all as the jury watches or tries to watch. Disregard for jurors’ attention spans can be hazardous to a case even as the simple spoken words “Let’s go off the record” serve to stop the camera, allowing an attorney to filter visual “dead spots” from the jury’s eyes. Although the video may be edited for trial, on-the-record pauses still may be overlooked because pauses do not appear in the deposition transcript (which is the blueprint for the planned video edits).

A planned and properly executed video deposition can result in a more attentive and focused jury. Here are some guidelines for the attorney planning an effective video deposition:

Frame the Witness. Before starting the video deposition, take a moment to check the framing of the witness on the video monitor. Examine “head room” in the shot. Head room is the on-screen area between the top of the deponent’s head and the upper edge of the screen. Too much head room results in a low-on-the-screen image of the witness, which might convey diminished credibility. (For example, President Bill Clinton was framed poorly in a 1998 grand jury video deposition – introducing a look of vulnerability.) The ideal head room is created with a shot encompassing the witness’s hands at the bottom of the screen and his or her head just below the top of the screen.

Although it is theoretically the videographer’s task to frame the witness properly, do not rely solely on the videographer. It is your deposition, and the appearance of your witness is paramount.

Organize Your Direct Examination. Favor simple declarative sentences and questions delivered in a confident conversational manner.

Have Needed Exhibits Immediately Accessible. Go off the record for any pause longer than 15 seconds.

Turn Off Cell Phones. Ask all participants to turn off their cell phones or set the phones to vibrate mode at the start of the deposition.

Limit Distracting Witness Behavior. Seat the witness in a straight-back stationary chair to avoid swiveling and rocking motions that might distract viewers. The witness should not, of course, be chewing gum or engaging in any similar distracting behavior.

Position Participants for Optimum Camera Results. Position yourself (and opposing counsel) at least six feet from the deponent at a rectangular table – the witness at the short end of the rectangle, and the attorneys on either long side. (Attorneys often ask, “Why shouldn’t I sit closer to the witness?” If a deponent is seated closer to counsel during direct and cross-examination, a too-steep angle to the camera typically results, with the jury’s attention fixed more on an ear than a face. Not all videographers are attentive to this framing detail.)

Avoid Small Printed Exhibits. Enlarge charts, medical diagrams, and the like to at least 36” x 36” (print in smaller 8 1/2” x 11” documents, too often presented on camera for a jury’s viewing, is not discernible in a standard video shot).

Ensure Audio Quality. For maximum audio quality, position your microphone on a jacket or blouse lapel (on the side closest to the witness) or no more than two inches below a tie knot. Holding a microphone in one’s hand – however briefly, even in the final seconds of a deposition – will result in mic noise that can distort deposition testimony and be highly annoying to the listening jury.

Instruct Witnesses to Face the Questioner. Your witness should look at the questioning attorney at all times while responding – not at the camera lens. Some attorneys favor a witness looking at the camera, but talking to a glass lens sincerely and convincingly is a skill even television professionals take years to develop.

Day-in-the-Life Documentary

A day-in-the-life documentary is a video presentation of an injured individual facing challenges of everyday life. The video is typically shot where the individual resides – a personal residence or nursing home, for example – although other settings can be introduced as well: a park, an automobile, a therapy session. The video captures key elements and challenges in the individual’s daily routine and can be used for either settlement purposes or – if allowed by a judge – presentation before a jury. A video documentary requires careful planning and execution.

The Plan. It is essential when planning a day-in-the-life video for the attorney to discuss the litigation with the legal videographer. The attorney should share with the videographer detailed information about the client and the client’s situation. It is prudent to have a meeting or conference call during which specific details of the case are talked about. The call can include the client and family members, because the more information the legal videographer has, the better the story can be told when the camera rolls.

Decide Who Is in Charge. Ideally, one attorney (or the attorney’s designated representative) is assigned as coordinating authority for the production. A single authority is necessary to avoid mid-project changes – and even restarts – that can be costly and sometimes fatal to the case. The optimum project is carefully planned and then executed according to that plan. (I recently was part of a project that was three-quarters along when a second attorney from the same firm took over the reins, jettisoning – on location – the original plan and the video footage already shot, while hurriedly self-directing a revised project from scratch. This new video was compromised because it lacked a plan, which would have ensured coordination of picture and content. It also cost more to produce.)

The Shot List. A shot list is a videographer’s road map. It’s about visuals. The questions before the attorney and videographer include the following: What are the unique challenges in the client’s everyday routine? How can we capture them in a cogent real-life visual story? The client’s challenges are all in the shot list – or should be. A shot list might document various routines that typically occur throughout a 24-hour period, such as:

• Morning Routine. Most people probably take for granted the simple act of getting out of bed in the morning. But mornings for an injured individual tell a compelling story to a jury. Here are some of the activities on the shot list of a morning routine:
• Rising in bed
• Getting out of bed
• Donning robe and slippers
• Getting to the bathroom (via wheelchair, if required)
• Toileting (optional shot)
• Bathing (possibly caretaker-assisted sponge bathing or showering) (optional shot)
• Brushing teeth
• Brushing hair
• Applying makeup
• Shaving
• Dressing

Bathing and toileting are optional shots in a day-in-the-life video but valuable in conveying the broader spectrum of the client’s story. By discreet framing of these moments, it is possible to show maneuvering challenges – activities often requiring the assistance of another person in what should be independent behavior. The client’s dignity should never be compromised when focusing on these activities.

Don’t overlook detail. For example, is the act of getting out of bed difficult or impossible for the client without the assistance of another person? Is there visible discomfort? Is there unsteadiness or fear of falling? Document such feelings by showing candid, authentic (never acted) actions and close-up facial expressions – all captured from a comfortable distance without intrusiveness.

Is the individual bedridden and limited to receiving sponge baths from a caretaker? These daily routines can be tedious, often uncomfortable, and challenging to personal dignity. Wider camera perspectives and facial close-ups can document this effectively.

Is it an ordeal for the client to don slippers and robe? And once in a bathroom, can the individual stand independently, shower without assistance, twist the cap on a tube of toothpaste, stand securely in front of a mirror for the time required to brush hair, apply makeup, and so on? Video, shot effectively, can tell these important parts of the story.

• The Remainder of the Day. With the morning routine covered, the remainder of the day – typically through late morning or midday – can be condensed into edited scenes of activities that are routine for most people but burdensome for seriously injured or ill individuals. These may include the following:
• Preparing or consuming a meal – accessing food, utensils, and so on
• Washing dishes
• Exiting the home, including negotiating doors and ramps
• Entering and exiting a vehicle
• Visiting the doctor or therapist
• Getting into and out of a chair
• Spending extended time alone (watching TV; idleness)

This list can be modifed during the planning conference with family members who know the client’s challenges.

Supplemental Family Video and Photos. A day-in-the-life documentary used in a recent case centered on a simple setting: the parents of the injured person sitting in the family room viewing photos and video of the individual in happier times. Their spoken reflections were recorded over full-screen views of the family’s photo collection. Their words and the imagery had significant impact in a settlement agreement.

The Finished Video. Once the video footage is complete, digital editing and titling typically follow. Two final production decisions are crucial: 1) Will the video be narrated? 2) Will it include interviews with the client or family members – like a television news documentary? If the documentary is for settlement negotiations, narration and interview segments can be revealing and persuasive. If it is for trial and thus requiring a judge’s pretrial review, narration or interviews might be disallowed, with the video scenes having to stand on their own.

A final suggestion rings personal: Be kind to the videographer’s tools. At the end of a particularly rancorous deposition, an attorney yanked off his microphone by its fragile cable with the words, “No … further … questions.” The videographer’s $400 microphone survived the dramatic sign-off, but a more costly lesson for that attorney is perhaps just a question of time.