Preparing for Video Streaming Civil Proceedings

COVID 19 is changing, and may well permanently change, how trial lawyers interact with each other, and the courts. Indeed, courts are conducting conference calls and oral arguments via video remote. (HINT: Dress appropriately for your court conference; don’t be shirtless, poolside, or in your jammies under the covers. Or, you may end up being scolded by the court like these real incidents: “Florida Judge Orders Lawyers to get out of bed, wear clothes for Zoom Hearings.” ). Now, obtaining and presenting evidence is also rapidly changing. From remote location depositions to live streaming testimony in court, these once-rare occurrences are becoming more the norm. The implementation and use of this technology could change the routine of traveling for a deposition and sitting around a large conference table with multiple people. The following are tips drawn from real-world experiences so trial lawyers can be fully prepared for this new wave.

Technology varies and must be fully vetted.

Software available in federal court works very well and is secure. But, many district courts have a minimal number of licenses, and criminal cases take priority. So you must make sure the technology is available for your civil trial.

There are many software options available. Free services are rarely secure, and may not be able to block out annoying interruptions. See this video, from a high profile criminal trial covered by CNN where the ill-advised prosecutor who used Skype^® for direct testimony. Microsoft Teams^®, WebEx^®, BlueJeans^®, and, as improvements are being made, Zoom^®, are reasonably priced options. You want software that will block out all interruptions and screen “pop-ups.”

For a discovery deposition, ensure that you, and your witness, have the appropriate hardware. Modern day laptops have fairly good cameras, speakers and microphones. But, it is worth spending a reasonable amount of money to obtain a high resolution camera, a quality microphone, and external speakers (you do not want you or your witness wearing headphones or earbuds).

Test the software and hardware well in advance of your remote session. You may feel your technology is state-of-the-art, but changes in hardware and software are constantly evolving. Test it out with a witness sufficiently in advance of your remote session so you have time to obtain any upgrades to hardware or software.

Use of a Remote Video Deposition at Trial.

Be cognizant that the video deposition may well end up in front of a jury. Fed. R. Civ. P. 32(a) (and many state rules) provides several instances where a deposition may be used at trial. Perhaps most importantly, if the deponent is a party, or a R. 36(b)(6) corporate representative, the adverse party may use the video deposition for any purpose, pursuant to R. 32(a)(3). Even though the rule provides the adverse party may use the deposition “for any purpose,” there are some limitations, such as when the deposition was taken on short notice. Nonetheless, make sure you (and a witness you are defending) conduct the deposition just as if you are live in the courtroom. Consider the example of the Microsoft^® Antitrust Trial. Skilled trial lawyer, David Boies, did not call Bill Gates as if on cross at trial. Rather, he had deposed Gates, in a party capacity, in-person on video. Gates was not dressed for trial. Occasionally, he slumped in his chair and displayed a snarky, dismissive attitude. Boies, and his team, edited together the Gates video and played a seamless series of questions and answers that were far more effective than calling a well-prepped Gates before the jury live in court.

Be fully aware of the applicable Rules.

There are specific rules, which vary by jurisdiction, regarding the recording of videotaped depositions. For example, Ohio R. Supr. 13(A)(4) requires that “a date and time generator shall be used to superimpose the year, month, day, hour, minute, and second over the video portion of the recording.” Recording of streaming video is unlikely to meet this requirement. Indeed, even in an in-person video deposition, many “videographers” use cameras that do not include the “seconds.” If you are defending such a deposition, then you should make an objection prior to the deposition, or as soon as possible upon identifying the non-conformance, or you risk waiving the objection. (Objections to the manner of taking the deposition, that can be cured, must be made immediately or they are waived.) Moreover, the Civil Rules allow the parties to stipulate to many technical difficulties.

For example, for these remote video depositions, the parties could stipulate that the court reporter or “officer” administering the oath need not be in the same location as the testifying witness. But, be careful about stipulating to the lack of a precise time generator because the purpose is to ease the burden on the court, and ultimately the editor, if there are objections that must be ruled upon in the often lengthy video transcripts. Even if the court reviews a written transcript to rule upon objections, before the video can be played in court, sustained objections require the editing of the question and answer, and overruled objections require the editing of the objection itself. (The court has the option to order only the audio suppressed, but consider the visual appearance.) See Ohio R. Supr. 13(a)(11) (court ruling upon objections made during deposition) and 13(a)(12) (editing alternatives).

The Rules on ruling upon, and editing objections, should serve as a siren call to inexperienced, objection-happy litigators. We have all encountered the opposing counsel who says “objection” or “objection to form” after almost every question, and particularly any question where the testimony could be damaging. The transcript is festooned with these ridiculous objections and the “objection log” can look as long as the Torah. In a multi-million-dollar suit between two banks, a very experienced state court judge looked at the well-over 100 objections in the videographer’s log and literally said, “are you (expletive deleted) kidding me? It will take me days to rule on these.” She ended up requiring the objecting lawyer to go through each objection and submit “only a small number” of legitimate objections and withdraw the others. And, the court required the law firm to pay for the video editing. These litigators don’t realize they gain nothing by voicing meaningless objections and could, as here, face sanctions. Nb: These folks are referred to as “litigators,” not “trial lawyers,” because only one who has never tried a case would resort to such tactics.

Preparing Your Witness.

Explain to your client that she is to consider the video deposition just as if she is testifying live in front of the jury.

• Dress appropriately for court and in a neutral, business-like manner. Even though the deposition may take place during the Holiday Season, don’t wear your favorite Christmas tie when the trial is set for June.
• Have a proper background. An office environment is ideal as long as lighting is appropriate (discussed below) and there are no people walking by or into the conference room. If the remote deposition requires the witness to be at home, then choose a business-like background. If nothing is available, then consider a screen. If the deposition is played to a jury, then rest assured they will scrutinize everything in the background (high-brow books, opulent or expensive décor, etc.). This should be addressed in your practice session(s).
• Ensure proper lighting. Natural light can be great, as long as it is in front of the Backlighting will darken the witness, and side lighting will partially darken the face. If necessary, consider purchasing inexpensive LED lighting so the witness is properly illuminated.
• Make eye contact with the camera. The camera should be at eye level and the witness should look directly at Laptops may need to be elevated so the camera is eye level to the witness. Make sure the camera is an appropriate distance. We’ve all seen the remote meetings with the extreme close up. Eye-level and shooting from the elbows up is preferred.
• Make sure the witness stays hydrated, but do not allow drinking during the call. This may require many more breaks than usual, but the jury will not know. However, when the jurors are thirsty in the box, they disdain seeing a witness glugging on an ice-cold water bottle. Consider, even in court, witnesses are provided only small cups from inconspicuous pitchers.
• Posture and Body Language are important.Use a solid or non-rocking chair. If an office chair reclines, make sure the witness keeps it in the locked position. Avoid rotating in a swivel chair. Many of those office chairs do not lock out the swivel. But, rocking back and forth can appear nervous and evasive. When you are practicing, identify any casual body language the witness has and eliminate them. Slumping, sighing, nervous laughter and shrugging are common, casual conversation traits, but they can be identified and minimized. This is court testimony, not a casual conversation.