By David Harak

Why You Should Be Video Recording Every Deposition You Take and Make Video Clips for Use at Trial
            Rarely have I tried a case in the last 20 years in which I have not used video clips from depositions I have recorded during discovery. As you will see below, if you properly note the deposition and comply with the applicable Maryland Rules of Civil Procedure, you have the absolute right to use video clips of the Defendant’s depositions, depositions of the Defendant’s experts, and depositions of other witnesses you can establish as being unavailable in your Case-In-Chief. There have been numerous times in my career that I believe I have won the case or settled it during trial because of my use of video clips of the Defendants and their experts in my Case-In-Chief.

The first benefit of video recording a deposition with the intention of later making video clips is that doing so should cause you to watch the entire deposition. If you are so inclined, it also provides an excuse to smoke a cigar while doing so. Although it is not necessary to watch the entire deposition to create video clips for use at trial, I would encourage you to do so. By watching the video of each deposition, you will see what reading the transcript alone is incapable of showing you. You will inevitably pick up on things that you may not have noticed during the deposition: the facial expressions of the deponent as he or she reacts to your questions; the inflection in their voice; and their body language. Each of these things can be priceless when shown to the jury in your Case-In-Chief. By playing clips in your Case-In-Chief of a Defendant or his or her experts you can often discredit them before they take the stand in the Defendant’s Case-In-Chief. As you will see below, the rules enable the Defendant to make counter designations for clips that the Defendant feels you are taking out of context. The Trial Judge will then be called upon to determine whether in fairness the Defendant’s designated clip must be played. If you have gotten key admissions and the Defense attempts to correct them during their chance to question their witness, when you do play both clips to the jury, at best, the Defense witness looks like a flip flopper in the eyes of the jury. 

Using video clips in your Case-In-Chief can be a particularly good way to gain the consent of the defendant to settle, when this consent is necessary and hasn’t been given prior to trial. When the Defendant sees how bad his or her experts look in your Case-In-Chief, at times, they throw in the towel and consent to settle without you having to take the case all the way to verdict. I can think of a medical negligence case in which each of the co-defendants blamed the other during their respective depositions. Apparently, they never discussed this fact with each other and furthermore were not made aware of this by the one lawyer who represented them. This created an interesting and memorable scene at the defense table when for the first time each doctor watched the other throw him under the bus during my Case-In-Chief. Not surprisingly, this caused them to magically see the light causing each of them to consent to settling the case.

Another added benefit of using video clips is that when you designate the clips you will use, you encourage Counsel for the Defendant to take their blinders off and invite them to see how the jury will see the weaknesses of their side during your Case-In-Chief. Crystallizing it for them in this fashion sometimes gets them to reassess their position and settlement becomes possible. This is particularly true if the Defendant’s lawyer decides to share your designations with an adjuster, who, for whatever reason, has chosen not to attend the depositions you have taken. In my video designations, I typically encourage the defense lawyer to show both the adjuster and his or her clients. Putting this in my video designation letter often forces the Defense lawyer’s hands and they comply as the optics of not doing so after a bad verdict are untenable. If the Defendants are shown these video clips, sometimes they change their decision not to consent to settle.

Okay now that you are open to the idea of video recording depositions, what are the things you will need to record depositions and then make video clips from these recordings?

 

Software You Will Need for Making Video Clips

Most trial presentation software programs that are available have video clip creators embedded in them that you can use to cut clips from video depositions that you record. If you feel you do not want to invest in or need a full-blown software suite of trial presentation software, there is other software available that you can use to simply make and play video clips of recorded depositions.

I use Sanction as my trial presentation software. When it came out fifteen or so years ago, I immediately bought it and have used it ever since. Sanction is such a good product that Lexis Nexis decided to acquire the company who developed it.

You will also need to synch the video to the transcript. If it is the cost of the synching that causes you to shy away from using this effective tool at trial, don’t let it be. Synchron Video is an extremely user-friendly company that does a great job at synching transcripts. To use Synchron Video, you simply open up an on-line account with them and upload the video of the deposition you want synched along with a computer file that contains the transcript, normally a .txt file format and they do the rest. You can also buy software that allows you to synch transcript with video on your own.

 

Using Zoom to Record the Deposition

Now that Zoom depositions are commonplace, it is easy to video-record a Zoom deposition. If you are going to use Zoom to record the deposition, I see no justifiable reason why you would hire a professional videographer. It is far more cost effective to train and supply your own videographer to host and record the Zoom. The possibilities here are endless, you can use literally anyone you want to record the Zoom, as long as you train them how to do it properly. The rules allow you to use someone from your office, one of your relatives, your god son, your god daughter, your mom, your children, or even one of your other client’s children who are off for the summer and want to make some extra cash. All the videographer needs to do is be trained how to do a few easy things. The first of which is what needs to be said at the beginning of the deposition:

My name is (the name of the videographer).
My address is (the address of the videographer).
I am video recording deposition for (The Name of Your Law Firm, Your Law Firm’s Address).
This deposition is taking place on (The date of the deposition) either by Video Recording or Via Zoom Video Recording
The Name of the Deponent is ___________.
The Caption of the Case is ______________.
The time is now _________________.

The videographer will have to also be familiar with how to stop and start the Zoom and save the video recording. The videographer will have to announce the time each time the deposition is off the video record. This will occur during breaks and/or when one of the attorneys ask to go off the video record. Please take the time to properly and thoroughly train your “videographer.”

Zoom typically records in MPG4, so make sure that this is a format that will work with your trial presentation/video clip creating software. If you intend to use Zoom, you should buy software that is capable of using MP4 video. Sanction is capable of using this format.

  In order to use Zoom, make sure that the deponent is spotlighted, so you are not on the recording; this is particularly important if you show up for depositions wearing outlandish outfits as I have been known to do. You will also need to make sure that if you want to show documents, videos or photos to the deponent the Zoom is recording your screen shares. You need to make sure whoever you choose to be your videographer has some familiarity with how to do this on Zoom. Run some practice sessions to make sure your videographer can demonstrate that he or she is capable of doing this correctly as you don’t want to be prohibited from using a vital clip because you don’t have your ducks in a row.

 When the deposition is over, you will still need to hire Synchron Video or one of the other post-production synchronization companies to synch the transcript for you.

Using Zoom is probably the cheapest and most cost-effective way to video record depositions for use at trial as it will not require you to purchase any equipment or media.

Given that in most cases, the total cost of video recording each deposition and syncing it to the transcript will be less than $200.00, in my view, there simply is no reason not to video record every deposition that you take in your practice. Yes, this axiom is also true for depositions taken in smaller automobile accident cases that are scheduled to be tried before a jury. If you are willing to pay the DME doctor for his or her time to take his or her deposition, you are likely already investing more than $1,000.00 of case expenses to do so. For another $200.00 you can preserve the points you score to discredit him or her in your Case-In-Chief. Equally important, if the DME doctor is a frequent flyer, you can use the video nuggets you get from the deposition you take in future cases.

 

Using Portions of a Video Recorded Deposition in Your Case-In-Chief at Trial

In my view noting the deposition as a De bene esse Deposition is a condition precedent for using video clips from the trial in your Case-In-Chief at trial. Other lawyers may disagree and note it as a video deposition for both discovery and for use at trial. I believe that it is safer to simply note it as a De bene esse Deposition that way you have made your intentions clear cutting off the possibility of some argument that the Defense did not know what you were trying to do. Maryland Rule of Civil Procedure 2-412 governs the notice and states in pertinent part as follows:

“Deposition- Notice

(b) Videotape or Audiotape. If the deposition is to be recorded by videotape or audiotape, the notice shall specify the method of recording. If a videotape deposition is to be taken for use at trial pursuant to Rule 2-419(a)(4), the notice shall so specify.

If you fail to note the deposition as a video recorded deposition, then opposing counsel can simply prohibit you from video recording the deponent or cancel the deposition.

Once you have met the notice requirements, you must then take the deposition in accordance with the procedure set forth in Maryland Rule of Civil Procedure 2-416 Deposition-Videotape and Audiotape.

Deposition-Videotape and Audiotape

(a) Permitted. Any deposition may be recorded by videotape or audiotape without a stenographic record, but a party may cause a stenographic record of the deposition to be made at the party's own expense. Except as otherwise provided by this Rule, the rules of this chapter apply to videotape and audiotape depositions.

(b) Deferral. On motion of a party made prior to the deposition, the court may order that a videotape deposition intended for use at trial be postponed or begun subject to being continued, on such terms as are just, if the court finds that the deposition is to be taken before the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent or other means, for cross-examination of the deponent.

(c) Physical Arrangements. The area to be used for recording testimony shall be suitable in size, have adequate lighting, and be reasonably quiet. The physical arrangements shall not be unduly suggestive or otherwise prejudicial.

(d) Operator. The operator of the recording equipment shall be competent to set up, operate, and monitor the equipment in accordance with this Rule. The operator may be an employee of the attorney taking the deposition unless the operator is also the officer before whom the deposition is being taken.

(e) Operation of the Equipment. The operator shall not distort the appearance or demeanor of participants in the deposition by the use of camera or sound recording techniques.

(f) Procedure. The deposition shall begin by the operator stating on camera or on the audiotape: (1) the operator's name and address, (2) the name and address of the operator's employer, (3) the date, time, and place of the deposition, (4) the caption of the case, (5) the name of the deponent, and (6) the name of the party giving notice of the deposition. The officer before whom the deposition is taken shall identify himself or herself and swear the deponent on camera or on the audiotape. At the conclusion of the deposition, the operator shall state on camera or on the audiotape that the deposition is concluded. When more than one tape is used, the operator shall announce the end of each tape and the beginning of the next tape on camera or on the audiotape. A videotape deposition shall be timed by a clock that shall show on camera whenever possible each hour, minute, and second of the deposition.

(g) Objections. The officer shall keep a log of all objections made during the deposition and shall reference them to the time shown on the clock on camera or to the videotape or audiotape indicator. Evidence objected to shall be taken subject to the objection. A party intending to offer a videotape or audiotape deposition in evidence shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered within sufficient time to allow for objections to be made and acted upon before the trial or hearing. Objections to all or part of the deposition shall be made in writing within sufficient time to allow for rulings on them and for editing of the tape before the trial or hearing. The court may permit further designations and objections as justice may require. In excluding objectionable testimony or comments or objections of counsel, the court may order that an edited copy of the videotape or audiotape be made or that the person playing the tape at trial suppress the objectionable portions of the tape. In no event, however, shall the original videotape or audiotape be affected by any editing process. (Committee note: This section supplements Rule 2-415 (g).

(h) Certification. After the deposition has been taken, the officer shall review the videotape or audiotape promptly and attach to it a certificate that the recording is a correct and complete record of the testimony given by the deponent.

(i) Custody. The attorney for the party taking the deposition or any other person designated by the court or agreed to by the parties represented at the deposition shall take custody of the videotape or audiotape and be responsible for its safeguarding, permit its viewing or hearing by a party or the deponent, and provide a copy of the videotape or its audio portion or of the audiotape, upon the request and at the cost of a party or the deponent. A videotape or audiotape offered or admitted in evidence at a trial or hearing shall be marked and retained as an exhibit.

As noted above, the great part about this Maryland rule is that you don’t need to hire a professional videographer to record the deposition. The rules do require that you still hire a court reporter to administer the oath and make a written transcript. One issue that will arise is the need for your employee and the court reporter to coordinate together so that the timing of each objection is recorded as required by section (g) above. If your court reporter is unwilling to keep the objection log contemporaneously during the deposition, this can be done after the fact using the synchronized transcript and video.

 

Playing Video Clips in Your Case-in-Chief

            Nearly every trial judge knows that the deposition of a party opponent may be used by an adverse party for any purpose. Maryland Rule of Civil Procedure Rule 2-419 Deposition-Use, states in pertinent part as follows:

             “(a) When May be Used.

(2) By Adverse Party. The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent, or a person designated under Rule 2-412 (d) to testify on behalf of a public or private corporation, partnership, association, or governmental agency which is a party may be used by an adverse party for any purpose.
 

            Maryland Rule of Civil Procedure Rule 2-419 Deposition-Use also allows you the right to use portions of a party opponent’s expert in your Case-In-Chief. Maryland Rule of Civil Procedure Rule 2-419 Deposition-Use, states in pertinent part as follows:

(a) When May be Used.

(4) Videotape Deposition of Expert. A videotape deposition of a treating or consulting physician or of any expert witness may be used for any purpose even though the witness is available to testify if the notice of that deposition specified that it was to be taken for use at trial.

****

(b) Use of Part of Deposition.  If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce at that time any other part that in fairness ought to be considered with the part offered and any party may introduce any other part in accordance with this Rule.”(bold underlined emphasis added).

Because you will only be playing “only part of a deposition” you must comply with this rule. How do you do this? Since you know you will be using video clips in your case-in-chief, the first thing you must do is ask the Court if it would be willing to set aside a hearing date to rule upon issues regarding video clips at the pre-trial conference. Some trial judges may not be as familiar with Rule 2-419. Take the opportunity to inform and educate the trial judge about the rule and your intent to use it when you draft a letter to the Court and send your designated video clips.

Before you write to the Court, you must provide opposing counsel with the videotaped deposition and identify the clips you intend to use in your Case-in-Chief. Because you are only playing portions of the deposition as video clips, opposing counsel has an opportunity to designate any additional testimony he or she believes should be included. You will find that working with opposing counsel will enable you to come to agreements regarding many of the clips you play. For those clips you will not need the trial judge’s assistance. For the rest both sides can make their arguments to the trial judge at the hearing you have gotten the judge to set or just prior to the start of the trial. In your letter asking the Court for a hearing, clearly identify the clips you intend to use, marking off the clips that you and opposing Counsel have not been able to come to an agreement on. Provide the clips along with the transcript to the Court and ask the Court to resolve any ongoing disputes.

 

Final Thoughts

I have successfully used clips of both Defendants and their expert witnesses in every case I have tried since 2002. If you choose to use clips from video depositions and you run into arguments about admissibility, objections made at deposition, playing clips from the defense expert’s deposition in your case-in-chief, or any other issues, please call me! I will be happy to help you. My cell phone is 410-808-1184. I have been successfully fighting this battle for over twenty years. 

 

Biography

David Harak is a trial lawyer who concentrates his practice on medical negligence and motor vehicle negligence, but has also litigated sexual abuse cases, product liability cases, civil rights cases, and sexual harassment cases. Although Maryland remains the main center of his, during his career he has handled cases in California, Oregon, Washington, Florida, Georgia, South Carolina, North Carolina, Virginia, West Virginia, Pennsylvania, Delaware, and New York. Mr. Harak is the longest tenured member of the Maryland Association for Justice’s Board of Governors having served continuously since 2004. For the past eight years he has been one of MAJ’s State Delegate to the American Association for Justice and served previously in this role from 2000-2008. Mr. Harak has written papers for the Trial Reporter and has been invited to speak to both his fellow trial lawyers at MAJ seminars and at MSBA seminars. Mr. Harak is a fellow in the National College of Advocacy and a 2012 graduate of Gerry Spence’s Trial Lawyers College. Mr. Harak served on the Trial Lawyer’s College Alumni Board of Governors from 2016 to 2022.