The Paperless Deposition
by Bradley Parker, Jim McConkie, Bradley Sidle and Lynn Packer
Historically, depositions have been a bonanza for billable hours, airlines and certified court reporters. An out-of-state deposition often meant hours of travel to gather witnesses, attorneys and sometimes even parties in a single room to scour piles of documents, often at a distant locale. During the past few years, technology has begun to change this time-honored tradition.
Recently, a deposition was held in Salt Lake City without a single paper exhibit being exchanged or any stenographer making the official record. Instead of shuffling paper documents and exhibits in front of the deponent, they were displayed on an LCD screen while both the deponent’s testimony and the LCD screen were simultaneously recorded with a remote-controlled video camera. The entire deposition was streamed over the Internet to other rooms at the law firm and to the clients at their home 40 miles away.
The world’s first paperless video deposition was taken here in Utah for a case involving a Syracuse, Utah man whose claims included severe brain damage after undergoing a hernia repair procedure. The deponent described documents and photographs with gestures and body language that were all captured on camera. There was no need to describe for the record where the deponent was pointing on documents – because it was all captured by the video camera for everybody to see and review. The deponent even used a tablet PC to annotate digital text documents on the screen – just like a traditional pen and paper exhibit mark-up, but in a digital paperless format.
Although video depositions are not new, paperless depositions have until now been virtually unknown. Some attorneys and courtrooms use document cameras to enhance paper document presentation. Occasionally, attorneys may show digital exhibits on laptop screens, perhaps play video clips from time to time, or even use PowerPoint presentations, but those are at best rare occurrences.
The concept of a paperless deposition follows the trend in many courtrooms where more and more evidence is being displayed from a screen rather than on paper. Additionally, the legal profession’s trend is away from stenographic and toward electronic record making. There is a smattering of steno-less depositions where attorneys, in search of a better record at lower prices, use audiotape or videotape proceedings with no stenographic backup. Bankruptcy attorneys, especially, have been ditching steno in favor of audio for their Rule 2004 examinations. The move away from paper in the courtroom parallels the same move many law offices are making toward paperless file systems.
The pool of people who know shorthand and how to operate stenograph machines has been drying up. Unlike their federal district court counterparts that still utilize steno, bankruptcy courts have been converting to audio recording. Utah’s state courts are also ahead of law firms and federal district courts on the electronic record making front. Most proceedings in Utah’s state court system are now recorded by digital audio and videotape machines. (Unfortunately many of the old analog video recording systems are now being replaced with audio-only recording, representing one step back after two steps forward.)
Video depositions are perfectly permissible under the Utah Rules of Civil Procedure. Utah’s rules, similar to the federal rules and those of several other states, permit video to completely replace steno as the official deposition record. Specifically, Rule 30(b)(2) states: “The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means.” The word “or” means that stenographic means are expendable.
Courts have long lauded the use of video depositions. In 1987, the United States District Court for the Middle District of North Carolina stated, “video depositions provide greater accuracy and trustworthiness than a stenographic deposition because the viewer can employ more of his senses in interpreting the information from the deposition.” Burlington City Board of Education v. U.S. Mineral Products Co., Inc., 115 F.R.D 188, 189 (M.D. N.C. 1987). Paperless video depositions are a natural technological progression. The benefits are undeniable:
• Each deposition costs less. After the initial costs, video depositions are much cheaper than stenographic depositions.
• The record of the deposition is an exact record, as opposed to a traditional stenographic record which may contain inaccuracies.
• Each deposition takes less time by eliminating delays for paper shuffling and the need to speak at a slowed rate that steno reporters can keep up with.
• The number of full-blown depositions can be reduced by deploying a strategy of recording video declarations of some witnesses that are shared with opposing counsel.
• The impact of the video testimony in settlement discussions, hearings and trials is much greater than printed testimony. Video testimony is more memorable to the viewer than simple audio or printed testimony.
• Secondary witnesses may appear at trial on video, rather than live, reducing trial costs and substantially cutting trial duration.
• Reactions, physical articulation and diction, which are otherwise lost in stenographic transcripts, are captured on video testimony.
• Other parties may watch streamed depositions remotely, which cuts down on travel costs.
The system as used by the authors has additional advantages. The setup allows for exhibits (documents, charts, timelines, photos, videos, etc.) to be displayed over the deponent’s shoulder, facing the camera, in a paperless format. This facilitates clear interaction with the exhibits viewable to all. Additionally, unlike some other video recording setups, the entire deposition record is displayed in a single window rather than the typical practice of displaying disconnected presenters and visuals on two displays, split screen or picture-in-picture.
A picture really is worth a thousand words. Often the answer of a deponent in a deposition and what that deponent communicates cannot be accurately reflected in black and white printed words. Relying on archaic stenographic means of transcription simply ignores the available technology. A video record is a more accurate record than a transcript. A transcript always leaves the question of whether it was transcribed with complete accuracy. A video record allows the proceeding to be reviewed for what was said, and sometimes more importantly, how it was said.
The disadvantages of paperless video depositions are limited. One concern is whether a text copy of the deposition can be procured. Digital audio/video files of a deposition can be provided on a CD or DVD within minutes after the deposition.
If a certified text record is needed quickly, the deposition can be streamed live or emailed to a certified transcriber who can work on a text transcript (in some cases even as the deposition is underway). Another concern is what happens when questions or answers need to be repeated from the record. Fortunately, many digital audio and video recorders provide a “read while writing” function – that is, they can play back while recording.
To minimize initial costs, video deposition setups can be procured step-by-step: first by procuring the display technology, then adding a camera and recorder, then adding back-up recording devices and streaming capabilities. The components can turn a vacant office into a miniature television production facility.
Equipment used by the authors includes a 40-inch Westinghouse LCD panel for display, and a high-end, robotic, remote-controlled Sony pan/tilt/ zoom camera for primary video recording. Those are coupled with a pair of Sanyo digital video recorders (DVRs), a Marantz digital audio recorder, a Behringer audio mixer and Bescor lights. A second fixed Sanyo camera is added for video backup and to capture the same kind of cross shot seen in television newscasts. There is also a digital audio recorder wired into the system to provide triple redundancy. Internet streaming and video conferencing capabilities have been added to make the setup even more versatile and functional.
While all of this technology does take some getting used to, with a little practice and experience the paperless video deposition is easily mastered. Pre-programmed camera settings allow for push button camera shots which can zoom in on the witness, the displayed exhibit, or both. Targeted viewer-focus technology via preset camera shots, directs judges’ and jurors’ attention to the witness when the deponent testifies without exhibits, to the exhibits when the witness is testifying about exhibits, and to lawyer/deponent exchanges when the question is as important as the answer. The camera is much more interactive in the paperless deposition process than is a traditional camcorder on a tripod in the back of the room that gets a single fixed shot the entire deposition. It is important to be able to get a tight shot on a deponent during his or her response to some questions so as to capture body language which gives the full effect of his or her answer across to a viewing audience.
Documents and other evidence can be easily displayed in simple PowerPoint presentations. Although this does mean that in order to conduct a paperless deposition, all exhibits must be scanned in before the deposition, it is possible to scan in documents at the last minute. Moreover, with traditional paper depositions, many attorneys find themselves printing electronic documents to paper in order to facilitate the cumbersome paper deposition.
The authors’ experiences with paperless video depositions are very positive. The witnesses they have been deposed so far – ranging in ages 10 to over 70 – have intuitively responded to the images projected on the video display. This has only helped them to explain and clarify their testimony. They point, they gesture and their testimony is much more clear and captivating than a dry black and white, written record. One can determine what pre-programmed shots may be needed before the deposition, and the rest falls into place as the deposition progresses. The camera remote control allows change from one shot to the next while still being able listen and oversee the audio levels of counsel and the deponent.
The authors have also procured a portable video deposition system that fits entirely in a suitcase. They video-recorded a paperless deposition in San Francisco using equipment they carried with them on the plane. An expert witness was deposed about a case involving a woman whose appendix had ruptured. The major components of the portable system are a Da-Lite rear projection screen, a Sony pan/tilt/zoom camera, a Casio “short throw” projector, an nNovia video recorder, and a Rolls audio mixer.
The on-the-road paperless video deposition was streamed, live, back to Salt Lake over the Internet so other attorneys and assistants could be apprised of the proceedings. The authors’ plan is to reduce the number of attorneys who travel, yet keep them in contact for input regarding the deposition. Instead of having multiple attorneys travel to a deposition, one attorney can conduct the deposition and have others watch the deposition back in the office over the Internet. At a break, a simple phone call can solicit any input the viewing attorneys may have.
The move toward greater use of paperless video depositions is undoubtedly the wave of the legal future. Traditional video depositions last way too long. Much of the ‘dead air’ is due to lawyers shuffling documents in front of deponents – documents that the camera cannot even ‘see.’ Paperless video depositions simply utilize available technology in an effective manner. Lawyers are slow to take advantage of the visual technology that is available, but jurors are often receptive to a more visual presentation.
There is no question that trials in the future will be conducted technologically. A time will come when shuffling paper documents around the courtroom and presenting information by blowing it up and pasting it on foam core boards will be a time-honored tradition of the past. Paperless trials which display information on a big screen that is easily visualized by everyone in the courtroom will be the norm. PowerPoint opening statements and closing arguments will be common. Documents will be displayed on the big screen during direct and cross examination. Impeachment by video deposition will be far more effective than reading back the cold print in a deposition. Learning to use and become comfortable with this technology at the deposition stage is the prelude to the courtrooms of the future. Effectual use of computer technology in the courtroom will, more often than not, give the side that uses it the definitive edge.