4 Ways In-House Counsel Can Benefit From Video Technology

Companies can be complex—especially from a legal perspective.  With Fortune 500 companies overseeing the activities of roughly 17% of the country’s workforce, large companies and even smaller companies will inevitably face a plethora of legal issues.  Workplace discrimination.  Harassment.  Insider trading.  The risks are endless—and can be overwhelming for in-house counsel to oversee and deal with. 

If your company faces a lawsuit from your employees, executives, or shareholders, you’ll need to ensure you and your fellow in-house attorneys can preserve and produce the right evidence for trial.  You’ll need to be savvy with the latest technologies and data collection techniques to not only meet ethics requirements but also ensure you’re properly collecting and preserving relevant evidence to achieve optimal outcomes for settlements or verdicts. Beyond this, you’ll need to prepare your officers, representatives, and other corporate designees for the inevitable depositions they’ll be facing, since any taped footage they end up in could be played at trial.  With video, you’ll have the ability to help your company in all these aspects and more. Here are four ways video can help your company when it comes to litigation.

  • Prepare Your Corporate Designees for Depositions and Court

Companies involved in litigation must produce one or more “corporate designees” to give testimony that binds the organization at trial.   FRCP Rule 30(b)(6) states these designees could be executives, board members, employees, or other individuals who consent to speak on behalf of the company on relevant matters during depositions and litigation.  The rule also requires companies to prepare their chosen designees for depositions and in-trial testimony, since all designees the company selects must speak on information known or reasonably available to the organization.  While you’ll have a large pool of potential designees to choose from, you’ll still need to coach them through how they should respond to high-pressure situations at the deposition table or courtroom.  The right video tools can allow your in-house team to better train your corporate designees so that they can be effective in any litigation-related environment.  By filming mock depositions, direct examinations, and cross-examinations with your attorneys, you can prepare your designees for what to expect from their depositions and court appearances. You can also give members of your outside counsel team access to these videos to provide further input and training.

  • Document Your Legal Hold Process

Once companies face the possibility or reality of impending litigation, they have a duty under FRCP Rule 37(e) to take reasonable steps to preserve relevant electronically stored information (ESI).  In doing so, in-house attorneys must work with their IT departments to document potential sources of relevant ESI and identify, collect, and preserve that ESI to prevent risks of spoliation.  Companies that fail to take this process risk overcoming court-issued sanctions in favor of your adversaries.  These rulings can include adverse inferences, enhanced access to your experts and stakeholders, reimbursement of attorneys’ and motion fees related to recovering spoiled evidence, dismissal of your claims, or even default judgments. To mitigate these risks, companies will need to identify key litigation stakeholders and send them notices advising them of their duty to preserve relevant evidence and disclose sources that could contain that evidence.  You’ll also need to conduct intake interviews with these so-called custodians—which you can do in-person.  By videotaping these interviews and storing them on an encrypted video system, you can document your ESI collection procedures in ways that adequately demonstrate you took reasonable steps to preserve relevant ESI.  Showing that your organization had these processes in place could help you avoid sanctions should your stakeholders inadvertently lose relevant ESI.

  • Assist Outside Counsel with Key Litigation Tasks

Once litigation arises, your in-house counsel team should do whatever it can to limit your outside counsel’s role to essential litigation tasks.  Doing so can help reduce your litigation spend, especially given that some multinational firms charge more than $1,000 per partner per hour for their best-performing partners.  With the consent of all involved, you can videotape virtual and in-person meetings, interviews, and exit interviews with key litigation stakeholders, and then organize them into unique case folders for easy access and retrieval on your encrypted in-house video platform.  Afterward, you can allow outside counsel to securely review those videos anywhere on any device as they determine the next steps for your litigation strategy.  If you need to produce transcripts of these videos to outside counsel, it’s easy to do so on advanced platforms. On ours, simply run keyword searches to find pertinent clips, and then export these files with a few clicks. If you need to produce transcripts of trial sessions and depositions, request our in-house staff to create them within 1-2 business days.  You can also allow outside counsel members residing in different states to listen in and participate in depositions via live video feed, which can be especially important for reducing travel and participation fees in MDL cases, class-action lawsuits, and multijurisdictional litigation.

  • Preparing Key Stakeholders for On-Camera Interviews and Presentations

Legal concerns can arise in any scenario involving live recordings, including on-air media interviews and public speaking engagements.  While there’s only so much you can do to prepare for the unpredictability of live talks and Q&As, you can be strategic and efficient in your preparation efforts by using video.  With your in-house camera recording equipment, you can run mock questions by executives on camera and replay your preparation footage to discuss feedback and go over on-camera presentation tips.  After uploading these videos onto your platform’s private on-demand video, your legal team can analyze your stakeholders’ practice sessions and responses for potential liability issues involving shareholder lawsuits, defamation, and more so that they can advise accordingly.  In-house counsel could also allow marketing and sales departments to take advantage of their high-fidelity cameras and sound systems to produce sales videos, recruitment videos, marketing presentations, and webinars.  Your in-house attorneys can then review them and run keyword searches against these videos to find clips that raise problematic claims and other liability issues.

CaptureCast Legal helps in-house attorneys of all levels of technical experience competently manage day-to-day discovery and litigation concerns.  Contact us to see how CaptureCast Legal can boost your in-house team’s litigation capabilities.

5 Ways Video Deposition Technology Can Help with Witness Preparation

Let’s face it—depositions can be a stressful experience for even the most seasoned witnesses.  While most litigators have experience responding to the taxing twists and turns associated with real-time depositions, inexperienced witnesses will not be as savvy when answering questions from stealthy attorneys without the comfort of a neutral judge in the room. While these types of troubles aren’t documented in the pre-trial deposition transcripts that parties eventually submit into evidence, these protections will go out the window if the deposition is also taped.  If your deponents fail to conduct themselves with poise on camera, you run the risk of seeing their poor body language and non-verbal cues magnified on-screen at trial.

With the right tools in your arsenal, you can efficiently coach inexperienced expert witnesses and lay witnesses from becoming liabilities into assets at the deposition table.  With video, you can do this cost-effectively and give your legal team and consultants the ability to easily provide real-time feedback.  Here are five ways you can use your firm’s in-house video platform to help your deponents survive the no-holds-barred environment of pre-trial depositions.

  •  Educate Witnesses On the Deposition Process

As lawyer John G. Balestriere described in a recent Above the Law article, witnesses are more vulnerable to lawyers’ trickery and chicanery in the deposition room than on the witness stand. Deponents accustomed to the decorum and formalities of in-trial testimony will be in for a shock once they realize how unruly depositions can be, as this deposition from renowned litigator Joe Jamail makes clear.  For one, there’s no judge present to keep attorneys and witnesses in check, although parties can request sanctions after the deposition.  Also, lawyers are limited to how they can object to their opponents’ conduct and questioning.  New York, for example, generally prohibits attorneys from raising objections during the deposition unless they fall within a select group of deposition-specific objections that would be waived if not raised. Texas similarly permits attorneys to make three types of objections during a deposition.  These include “Objection, leading” and “Objection, form” for attorneys’ questions, and “Objection, non-responsive” for deponents’ testimony. While state and federal civil procedure rules do allow for sanctions against attorneys for unconscionable conduct during depositions, deponents should be made aware of what they should expect once their depositions begin.  With video, you can show deponents footage of real or mock depositions to help them better understand the deposition process. You can also use your system to provide technology and conduct pointers for deponents preparing for a remote deposition.

  • Train Witnesses on How to Respond to Anticipated Questions

Given the lax restrictions that accompany depositions, you must ensure your deponents avoid getting caught off-guard and divulging more information than necessary during their depositions.  Ideally, your witness should only say enough to affirm or deny an opposing attorney’s questions without sharing any new details that could undermine the theory of your case—all while being truthful and not purposely misleading. You should also coach your witnesses on how to respond effectively to compound questions, assumption and speculation-based questions, and paraphrased answer questions since these categories of questions can all prompt witnesses to divulge more information than they should. Taping your deponents during mock sessions and going over their specific responses with them can be an excellent way for you to help your deponents become aware of any pressing issues they need to work on during their depositions.

  • Analyze Witnesses’ Body Language and Non-verbal Cues

With video, you can capture your opponent’s deponents in an unflattering light during their depositions and use this footage to impeach them on the stand with flair. Your adversaries, however, can follow the same playbook with your deponents if your deponents are unable to carry themselves effectively in the deposition room. As you prepare your witnesses through pre-trial discussions and mock depositions with your legal team, you can analyze what types of tics, reactions, and body language would undermine the quality of their deposition testimony.   By taping their conduct during mock sessions, you can also show your witnesses the different types of situations, questions, and conduct that can trigger negative body language and coach them on ways they can hide or otherwise tone down these traits in the deposition room. 

  • Train Witnesses for On-Camera Conduct

Although advances in video technology have made video deposition technology less intrusive, lawyers should make every effort to ensure that their witnesses are aware of proper on-camera conduct in the event their depositions end up being recorded.  Reactions such as looking away from the camera, turning to counsel for advice, or nail-biting can paint your deponents’ answers in a negative light before judges and jurors if that footage is played at trial.  Attorneys can play deposition practice sessions with witnesses to go over these details and help highlight ways deponents can improve their on-camera poise.  Appearances will also matter as well, especially if your deponent’s deposition is played in court.  While deponents should ideally dress for an on-camera deposition as they would for trial, lawyers can use their video tools to have their deponents wear different outfit options and, if applicable, send test footage to trial and jury consultants for related feedback.

  • Educate on How Witnesses Can Respond to Aggressive Tactics from Opposing Counsel

Because attorneys run the show at depositions, opposing lawyers may be more willing to take risks and engage in conduct that risks being inappropriate for spooking or intimidating witnesses into divulging more information than needed.  You can help your deponents work around this by running through mock depositions involving aggressive questioning.  Lawyers can use their in-house video tools to not only film these mock depositions, but allow their deponents, legal team, and outside consultants to view and provide feedback on them in a secure online environment.  At the very least, you should set aside time with your deponents to talk through the various scenarios that could occur before opposing counsel and develop plans of attack for responding to them and making relevant objections. 

CaptureCast Legal’s suite of video recording tools make it simple for attorneys to prepare their witnesses for depositions regardless of their technical background. Contact us today to learn how CaptureCast Legal can help boost your firm’s litigation capabilities.

Empowering Your Personal Injury Cases With Video

Motor vehicle accidents.  Workplace injuries. Assault and battery incidents. Regardless of the type of personal injury case you’re trying, you’ll need to ensure you have the right evidence and testimony in place to help your client.  In the process, you’ll likely depose key parties, witnesses and experts when gathering facts to build your case.  This means you’ll likely be examining and cross-examining not just parties, but a wide array of physicians, officers, and expert witnesses.

If you decide to tape your pre-trial depositions, you can use this footage at trial in a wide array of scenarios within both federal and state courts. This allows you to harness the power of video in the courtroom to impeach witnesses, secure testimony from unavailable witnesses, and more.  It also allows you to capture a deponent’s non-verbal reactions to questions and exhibits, which stenographers cannot include in their deposition transcripts.

This doesn’t mean that all deposition footage you submit is admissible by default.  Lawyers must follow specific steps before and during their depositions to ensure they can submit taped pre-trial deposition videos into evidence. Lawyers who turn to professional videographers, however, not only find themselves creating an intimidating environment for their deponents but also waste needless time and billable hours searching for key clips to use at trial.

Taping depositions doesn’t need to be complicated and expensive.  CaptureCast Legal simplifies and centralizes these processes onto a single platform that attorneys of all technical backgrounds can control without sacrificing video and audio quality. Here’s how CaptureCast Legal can help you expand your personal injury litigation capabilities:

Have easy-to-use recording equipment that anyone can operate: Depending on your jurisdiction and the types of witnesses you’re deposing, you may need to have deposition officers or neutral individuals control your deposition recording equipment. In other states, law firm employees can record your depositions if they can competently operate your equipment.  And in Texas, lawyers and parties can film depositions themselves!  While the law doesn’t require you to use professional videographers to tape your deposition, opposing counsel may raise recording competency issues if you try submitting low-quality deposition footage into evidence.  Naturally, you’ll want to ensure your recording system is readymade for anyone to use.  Our easy-to-use, touchpad-based recording system allows anyone to successfully and competently operate your recording equipment and produce high-quality, high-fidelity videos regardless of their videography experience.

Quickly Find & Export Key Deposition Clips Using Text-based Search: Federal courts and state courts allow parties to submit portions of taped depositions into evidence while keeping your original deposition tape intact.  Some states may also require you to highlight objectionable sections to suppress at trial.  Preparing these clips used to entail hours of re-watching footage and expensive post-production editing.  Not anymore. CaptureCast Legal turns this days-long process into one that takes minutes. Run keyword searches against your pre-trial deposition videos instead to locate relevant deposition testimony clips, just as you would when searching for information online.  Once you find these clips, simply export those relevant segments for sharing with a few clicks.

Coach Your Associates and Partners on Trial Tactics: Whether you’re trying a high-stakes workplace injury case or a controversial automobile accident matter, you need to ensure your associates and partners are on the same page when creating arguments and strategies that support your client’s position.  Our non-intrusive, multicamera recording system can be installed in any meeting room or mock courtroom to help you observe your team’s performance during mock trial sessions. Each video you record is automatically stored and cataloged within your own private multimedia library, allowing you to review practice footage on-demand with your lawyers anytime, anywhere on any device.

Create a Filming Environment That Encourages Witnesses to Share Helpful Testimony—During depositions, nothing is worse than trying to elicit key testimony and contradictory statements from quiet, uncomfortable, and withdrawn deponents. Conducting depositions alongside large cameras, lighting equipment, and audio equipment will certainly not help your cause here.  Our high-fidelity cameras and omnidirectional microphones can be discreetly installed in your deposition recording spaces, allowing your deponents to feel more at ease on camera.

Capture Deponent Reactions and Body Language in High-Definition—Getting adverse eyewitnesses, expert witnesses, or parties to squirm in response to exhibits and questions can leave a major impression on juries.  Our suite of HD cameras can capture your deponent’s responses and body language from all angles as they field your questions and review relevant evidence during taping sessions. Our installation team will also work with you to create an installation plan that maximizes the value of your office rooms as recording spaces for depositions and practice sessions.

Tape Footage that Complies with State and Federal Video Quality and Informational Requirements—Depending on your jurisdiction, you may need to submit technical information about how your deposition was recorded.  New York, for example, requires all video submitted for admission to include recording speed data and other metadata that may be necessary when making copies or replaying your footage at trial.  CaptureCast Legal makes this information and metadata accessible in a user-friendly way.  Simply log into your media library, pull up the deposition video file you want to submit, and you’ll find this information available to review. 

Securely Access and Reuse Videos Stored in Your Multimedia Library—Law firms must securely store and organize any deposition videos they take.  Doing so will not only help them avoid potential spoliation and conflicts issues but will also cut the number of billable hours required to locate, edit, and export relevant testimony for current and future matters. CaptureCast Legal automatically uploads your taped depositions onto a secure, private video library that only you, your associates, and designated staff can access.  This allows you to review depositions and practice footage anytime, anywhere from any device. 

High-quality deposition footage can add an emotional dimension to your case that will resonate with jurors. CaptureCast Legal includes tools all attorneys need to record admissible depositions regardless of their prior videography experience. See how CaptureCast Legal can boost your personal injury litigation capabilities.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

Empowering Your Tort Cases With Video

Whether you’re preparing for toxic torts lawsuits or medical malpractice cases, it’s highly likely you’ll need to rely on or undercut expert witness testimony to secure favorable verdicts for your clients.  In negligence cases, you may need to depose expert witnesses to show the defendant owed and breached a duty to an injured plaintiff, along with whether that defendant’s conduct was the actual and proximate cause for the plaintiff’s injury.  Cases involving asbestos exposure or chemical poisoning, on the other hand, could hinge on how well your or your opponent’s scientific, medical, and other subject matter experts address causation issues.

While you can always submit certified stenographic transcripts of your depositions into evidence, these transcripts won’t tell juries everything that happened in the deposition room.  Stenographers aren’t allowed to include notes on the deponent’s body language, reactions to questions, facial expressions with exhibits, and other non-verbal cues.  Fortunately for litigators, state and federal courts allow parties to submit pre-trial deposition videos into evidence for a wide array of reasons.  This allows you to not only add powerful visual and emotional context to deposition transcript responses but also allow you to incorporate testimony from unavailable witnesses.

Still, not all deposition videos are admissible by default.  Lawyers will not only need to satisfy jurisdiction-specific notice requirements before taping the deposition but will also need to ensure they’re recording the deposition competently.  In some jurisdictions—including California—you’ll need to have a deposition officer operate your recording equipment if you’re deposing expert witnesses or medical doctors. For many law firms, this means you’ll need streamlined deposition recording equipment that anyone can use regardless of their videography experience.

CaptureCast Legal eliminates these variables so that anyone can record and export high-fidelity deposition footage for use at trial.  Our platform allows you to search for testimony, export clips, generate transcripts and organize your videos in a few clicks—all without going through professional videographers and post-production teams. Here’s how CaptureCast Legal can help amplify your litigation capabilities for your next case:

Invite Legal Team Members and Interested Parties to Participate via Live Feed—In many jurisdictions, parties can conduct depositions via live feed if they timely notify other interested parties and arrange to have those parties and their lawyers also participate via live feed. Having this capability can help ensure any depositions you hold for multijurisdictional torts cases ends up going smoothly. CaptureCast Legal provides this option via our native live-streaming features.  Our platform allows you to involve members of your legal team and other interested parties to securely watch and participate in your depositions anywhere on any device.

Capture Deponents’ Reactions to Exhibits and Questions – Showcasing filmed deposition segments can help you fire off emotional punches against witnesses and parties you’re impeaching at trial.  Since deposition stenographers are not allowed to record deposition participants’ reactions, pauses, or other non-verbal cues, deposition footage can help jurors better understand a deponent’s statements or opposing attorney’s conduct. Our non-intrusive, multi-camera, high-fidelity recording system can capture your deposition proceeding from all angles. This gives you opportunities to highlight parties and witnesses’ negative non-verbal behavior in ways transcripts alone cannot achieve.

Export Important Deposition Segments as Admissible Evidence—State and federal courts allow parties to submit full-length tapes of pre-trial depositions or relevant clips from those tapes as evidence in civil cases. Some states, including New York, require parties to either edit objectionable sections or single them out to suppress during in-trial playback—all without altering your original files. CaptureCast Legal allows you to locate relevant testimony by running keyword searches against synchronized video transcripts. You can then export these clips as separate files without altering your original footage.

Access Your Library of Deposition Videos in a Protected Environment—Need to use a previously-taped deposition for a new lawsuit? Need to send certified copies of your videos to a stenographer to transcribe? CaptureCast Legal categorizes and uploads your videos onto a private multimedia library that only you and approved associates can access.  This allows you to retrieve and export deposition videos for any matter without altering or destroying your original files.  Our built-in user access controls can also help mitigate potential conflicts issues involving other attorneys in your firm.

Easily Record Depositions Regardless of Technical Experience: Depending on the state you practice in and the type of witness you’re deposing, you may need to have a deposition officer or other neutral party control your recording equipment.  CaptureCast Legal’s easy-to-learn, one-touch recording system allows anyone to record high-quality deposition footage with the click of a button, helping you mitigate videography competency issues at trial.

Coach Your Associates and Partners Before Trial: Whether you’re trying a high-stakes product liability case or a complex class action lawsuit, you’ll need to ensure your associates and partners are making the best possible arguments for your client.  Our non-intrusive, flexible recording system can be installed in any meeting room or mock courtroom to tape your lawyers in action.  Your trial practice footage is then automatically uploaded, categorized, and securely stored onto your firm’s private multimedia library for later review.

Tape Footage that Complies with State and Federal Video Quality and Informational Requirements—Many states require parties to satisfy video quality and technical information disclosure standards when submitting pre-trial deposition videos into evidence.  California requires deposition sessions to be conducted under specific room and lighting conditions, while New York mandates parties to include tape recording speed and other technical information with their deposition tapes. CaptureCast Legal’s high-fidelity cameras and omnidirectional microphones allow you to record footage that complies with these requirements.  We also capture recording speed information and other metadata you may need to submit with your tapes.

With the right deposition platform, your team can produce and submit high-quality deposition tapes at a fraction of the cost and time it would take through using videography teams. CaptureCast Legal boasts the tools all attorneys need to record admissible depositions regardless of their technical experience. 

Contact us to learn how CaptureCast Legal can boost your litigation capabilities. Free onsite trial to prove smart indexed video can help your litigation strategy.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

7 Questions to Consider When Taping Depositions for Texas Civil Cases

If you’re practicing in Texas and want to incorporate taped testimony in your upcoming case, you’re in luck.  Much like California and New York, Texas allows parties to use taped deposition testimony as evidence in the same manner they can with stenographic deposition transcripts. Just because Texas treats taped depositions as eligible evidence doesn’t mean that any video you take is automatically admissible.  You’ll still need to follow critical steps when sending out notices and conducting depositions to ensure your taped deposition footage is admissible. 

Fortunately, much of these steps revolve around how you prepare to take the interview, along with how you provide notice to other parties.  Here are some things to keep in mind as you prepare for your next deposition:

  • Did You Notify All Parties? —If you want to tape any deposition related to your case, you’ll first have to timely notify all parties of your intent to do so. Under Rule 199.1, you can do this by stating your intent in the original deposition notice or by sending a subsequent notice at least 5 days before the deposition date. You must state that you are videotaping the deposition and indicate if it will be stenographically recorded simultaneously.  If you are requesting to tape the deposition, you must provide a certified oath-giver and ensure the final video is an intelligent, accurate, and trustworthy depiction of the deposition. You will also be responsible for furnishing recording equipment and related taping costs unless a judge orders otherwise.
  • Who is Handling Your Equipment? —Unlike other states, Texas is flexible on who can operate your recording equipment.  When read together, Rules 154.101(f) and Rule 154.114 of the Texas Government Code allow attorneys, parties, and their full-time employees to videotape depositions and operate related equipment.  As Burr v. Shannon shows, judges could unilaterally institute protective measures governing how you record your video.
  • Should You Bring a Stenographic Recorder to the Deposition?Rule 203.6(a) gives courts the discretion to require parties to have a certified stenographer transcribe their depositions. While stenographers can transcribe your depositions in real-time, they’re allowed to transcribe them afterward by watching the original tape or a certified copy.
  • Where Are You Holding the Deposition?—Rule 199.2(b)(2)(A-E) states you may need to hold your deposition in the county where your deponent resides, works, transacts business in person, or was served.  It can also take place in the county where the lawsuit was filed if the deponent is a party. You should ensure the location you use supports high-quality audiovisual recording equipment to ensure high-quality footage.

Once you’ve served your notices, you’re now ready to tape your deposition.  This doesn’t mean you’re out of the woods just yet.  As you prepare to tape your deposition, make sure you consider the following questions to avoid additional admissibility obstacles:

  • Are You Following Proper On-Camera & Off-Camera Procedures?—Under Rule 199.5, the deponent must be in the deposition room on all days the deposition is taped and must be sworn in on-camera.  Parties who request the deposition to be held by telephone or via remote feed must arrange for all parties to participate in this manner.  Lawyers are then free to examine and cross-examine the witness but must do so within specified time limits and other procedural restrictions. Parties can also submit written questions for the deposition officer to read to the deponent.  After the deposition has concluded, the deposition officer must file a certification with the court and all parties that complies with Rule 203.2.
  • Are You Observing Deposition-Specific Conduct Rules? —Lawyers taking depositions face restrictions unique to Texas depositions.Under Rule 199.5, each party is limited to six hours for examination and cross-examination, excluding time taken for breaks or off-the-record comments. Lawyers can also only raise leading-question, form-of-question, and non-responsive-answer objections during the deposition, and cannot confer privately with other parties or deponents while the deposition is in progress. While lawyers can instruct deponents not to answer questions, they must only do so to preserve privileges, comply with court orders or civil procedure rules, avoid argumentative or misleading questions, or to preserve their right to a hearing regarding the deposition.
  • Do I Need to Show the Final Tape to the Deponent? Rule 203 normally requires parties to submit stenographic transcripts to deponents and allow them to attach corrections or explanations relating to their answers.  Parties who request to tape depositions of adverse deponents can take advantage of a procedural quirk that prevents them from doing this.  This is because Rule 203.1(c)(3) waives this presentation requirement for taped oral deposition recordings.

Lawyers and parties who don’t follow proper deposition procedures or who are argumentative and suggestive with their objections could risk assuming deposition costs, facing sanctions, waiving their objections, and terminating their depositions. Judges could also allow in testimony, objections, and discussions from the deposition that undermine the deponent’s credibility.

How You Can Use Taped Deposition Footage in Texas Courts

As Texas Rules of Evidence Rule 801(e)(3) states, a deponent’s statements during a taped deposition constitutes non-hearsay evidence and may be used at trial regardless of whether the witness is available or unavailable to testify. You can use this evidence on its own or to refute written or recorded statements offered by your adversary under Rule 106. You can also use prerecorded deposition testimony to impeach witnesses [Rule 801(e)(1)(A)(i)]; provide context to a deponent’s in-trial statements (Rule 107); or prove the content of a writing, recording or photograph (Rule 1007). When a deponent is unavailable to testify, you could use deposition testimony given in a different proceeding. According to Rule 804(b)(1)(A)(i-ii), this is allowed if it’s offered against the same party and that party had an opportunity to examine or cross-examine the deponent.

While Texas allows lawyers to use deposition footage at trial, you’ll still need capable filming and recording tools to produce admissible footage that’s intelligible, accurate, and trustworthy. CaptureCast Legal offers tools that lawyers of all technical backgrounds can use to record and submit pretrial deposition footage into evidence. Contact us to see how CaptureCast Legal can enhance your litigation capabilities.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

8 Questions You Should Consider When Preparing Deposition Recordings as Evidence in New York

New York’s Civil Procedure Laws and Rules (CPLR) takes an open-minded approach toward treating pre-trial deposition footage as evidence in civil court proceedings. CPLR Rule 3113(b) authorizes parties to record depositions through stenographic or “other means,” although the details of this requirement can vary based on the individual rules that apply to each of New York’s four appellate divisions. As  Rule 202.15 confirms, the term “other means” is expansive enough to include deposition video and audio recordings.

Although you’re not required to demonstrate any special need to film or otherwise record a deposition, you’re still required to follow certain formalities beforehand to ensure the recordings you submit meet CPLR standards. Failing to do so could lead to admissibility obstacles that could preempt you from using invaluable visual, pre-trial testimony at trial. Some questions you should ask yourself as you prepare for your next deposition include:

  • Have You Included the Right Disclosures in Your Stipulation? – Every notice or subpoena for a deposition must disclose that the deposition will be taped and include the name and address of the operator. If the parties agree to participate electronically or via telephone, the stipulation should cover how the parties will generate an accurate record of the deposition and use exhibits. It should also state who will be present at the deposition.
  • Should I Transcribe the Deposition? – The CPLR allows parties to transcribe recorded depositions either during or after the deposition. Nonetheless, you should be prepared to furnish stenographic transcripts of your depositions upon request. Trial court judges, for example, can request parties to submit deposition transcripts at any point during a trial. You’re also required to submit transcriptions of any recorded depositions on appeal.
  • How Should I Record the Deposition? —The CPLR gives parties leeway to use multiple cameras individually or at once while filming a deposition. New York also permits firms to use deposition officers or even their own employees to control pertinent recording equipment.

After you notify your parties and prepare your taping room for recording, you’ll need to record the deposition. Rule 202.15(d) describes the steps that parties must take during the deposition to be considered admissible. Naturally, some additional questions you should account for include:

  • Did I Follow Proper On-Camera Procedures? – Once the deposition recording begins, one of the attorneys or the equipment operator must state the name and address of the operator and the operator’s employer; the date, time, and place of the deposition; and the party on whose behalf the deposition is being taken. The deposition officer must also identify himself or herself and swear in the witness on camera. Parties will also need to use a time-date generator to time the deposition, and orally announce the time and date at the beginning and conclusion of each recorded segment. The operator must also announce the beginning and end of each taped segment if the deposition consists of multiple tapings or storage units. Once the deposition concludes, the operator must state on camera that the deposition has ended.
  • Did the Deponent Review the Recording? – Under Rule 3116, the deponent must have the opportunity to examine his or her testimony for accuracy and changes. Likewise, Rule Rule 202.15(d)(4) requires the deponent to examine any recordings of his or her deposition. The deponent and parties, however, can collectively waive this requirement.
  • Did I Submit the Tape with Appropriate Certifications and Technical Information? – You must submit any full-length depositions or clips you plan to use at trial to the court clerk. Any copies you submit to the clerk must include recording speed figures and other technical information helpful for playing the recording or making additional copies. The deposition officer must also attach a certification stating that the officer swore in or affirmed the witness and that the recording is a true record of the deponent’s testimony. The deponent would also need to sign the certification unless he or she consented to not review the recording.
  • Will I Need to Submit Edited Versions of the Depositions? – Courts may require the party to edit out objectionable material or flag them in the video file so that they can be suppressed when played at trial. Lawyers must also be prepared to submit both the original video file and any edited-down or marked-up files to the court clerk.

Scenarios Where Parties Can Use Pre-Trial Video Testimony in New York State Courts

Once you’ve recorded your deposition, you have many options available for using it at trial. Rule 202.15 permits parties to use taped depositions at trial in the same manner they would use stenographic transcripts, so long as the party introducing the video furnishes appropriate equipment and personnel for presenting it at trial. Rule 3117 describes how lawyers can use deposition recordings at trial, on the hearing of a motion or interlocutory proceeding, or in cases addressing the same subject matter.

Rule 3117 allows parties to introduce the recorded depositions of other adverse parties involved in an action, as well as relevant deposition clips that an adverse party decides not to show. It also allows lawyers to use deposition recordings to admit witness testimony that would be impossible or difficult to procure in-person. The CPLR permits parties to use deposition recordings to impeach the deponent’s in-trial testimony, or in situations where the deponent is deceased; located more than 100 miles away from the location of the hearing; unable to attend or testify due to age, health issues, or imprisonment; or are otherwise unavailable despite using diligent efforts to procure the witness through court orders and service of process. Judges may also accept recorded depositions in lieu of live testimony in exceptional circumstances. Finally, you can submit deposition recordings of licensed medical practitioners regardless of the practitioners’ ability to testify in person.

While the CPLR invites lawyers to use deposition recordings as evidence, you’ll still need the right recording platform to film and store your taped depositions in compliance with CPLR requirements. CaptureCast Legal offers the tools you’ll need to seamlessly record depositions and prepare them for trial. Contact us to see how we can help expand your trial capabilities.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

7 Steps and Considerations Lawyers Should Explore When Preparing Deposition Videos in California

It’s well established that taped pre-trial depositions can be fair game as evidence in federal civil trials.  California, which hosts two of the nation’s largest metropolitan legal markets, is no different.  California’s Code of Civil Procedure (CCP) permits parties to use taped pre-trial depositions as evidence.  Nonetheless, you will face admissibility obstacles if you fail to follow CCP-compliant procedural and recording practices. Here are some important considerations you should explore as you approach your next deposition.

Steps You Will Need to Take When Conducting Your Deposition

If you are looking to tape a deposition and submit related footage into evidence, CCP § 2025.220 states that you’ll need to make specific disclosures first in your deposition notice. You may also need to serve your deposition notice on specific participants depending on the type of deponent you’re interviewing. Satisfying this requirement is straightforward, although overlooking these steps could jeopardize your ability to admit this footage into the record. When reviewing your deposition notice, ensure you’ve taken the following steps in addition to baseline notice requirements.

  • Record your intent to tape the deposition and use it at trial – In your deposition notice, you’ll need to include a statement expressing your intent to record the deposition by video and/or audio.  You’ll also need to serve this notice on the deponent and other interested parties.  If you intend to incorporate real-time court reporting tools, you must note your intent to do so and serve a copy of your notice on the deposition officer.
  • Record your intent to use expert witness and physician deposition footage at trial – If you’re planning to depose a practicing physician or expert witness, you have the right to submit footage of their non-objectionable testimony at trial even if that witness is available to testify at trial.  However, you must include a statement clarifying your intent to do this and ensure that the deposition officer you select to film the deposition is completely unaffiliated with any party, eligible to administer oaths, and has no financial interest in the matter’s outcome.
  • Transcribe the deposition—By default, a qualified stenographer must be present to record a taped deposition, so long as the stenographer used meets the qualifications described California’s Business and Professions CodeWhile the CCP permits parties to waive this requirement through unanimous agreement, parties who intend to use pre-trial deposition footage as evidence courts must submit a stenographic transcript prepared from the deposition footage.

After you’ve served your necessary notices, you’re ready to film your depositions.  There are still specific steps you’ll need to take before, during, and after the recording process to ensure your recordings are admissible. CCP § 2025.340 describe these steps, and instructs parties and their attorneys to consider the following:

  • Is your recording room setup compliant? —CCP § 2025.340(a) requires attorneys to ensure the area they use for recording any oral testimony to be suitably large, adequately lighted, and reasonably quiet.  Using non-intrusive recording equipment can help you meet this requirement.  If the individual or company acting as your deposition officer is offering you products and services to assist with the recording process, the officer must make these available to all other parties at a reasonable cost. Parties, however, cannot request the deponent’s personally-identifiable information or the officer’s notes on each participant’s demeanor and body language.
  • Who is operating your recording equipment?—Law firms can generally use their own employees to operate their recording equipment depositions, so long as those employees can competently set up, monitor, and operate your equipment.  If you’re deposing an expert witness, practicing physician, or consulting physician, this isn’t allowed.  You must instead let a neutral, nonaffiliated deposition officer who is authorized to administer oaths.  He or she must also have no financial interest in the matter’s outcome. Regardless of who ends up operating your video deposition recording equipment, you must ensure that you avoid using editing or sound recording techniques that end up manipulating or altering the participants’ appearance or demeanor.
  • Are you following proper on-camera procedures?—Each taped deposition you produce must begin with an oral or written statement disclosing the taping operator’s business address and name; the time, place, and date of the deposition; the case’s caption; the deponent’s name; any party-requested stipulations; and a statement disclosing whom the deposition is being conducted for. All attorneys will also need to identify themselves, and the officer will need to administer an oath to the deponent on camera.  If the deposition needs to be saved across multiple files, the officer will need to announce the conclusion and the beginning of each taped segment.  Once the deposition is complete, the officer will announce the conclusion of the deposition on camera and state any stipulations made by the parties’ lawyers regarding custody of the recording, exhibits, and other important matters.
  • Have you preserved your original files?—California courts permit parties to submit clips of taped depositions and may unilaterally require parties to edit out sections of any taped testimony those parties plan to show at trial.  Still, CCP § 2025.340(m) requires parties to preserve their original, unaltered deposition recordings.

When Can You Use Taped Deposition Testimony at Trial

Once you’re done recording, you’re ready to submit your deposition tapings into evidence.  CCP § 2025.620 permits parties to use taped depositions for any purpose in trials or other hearings related to a civil matter.  This includes using pre-trial deposition footage to impeach witnesses, contradict testimony, and include deponents who live more than 150 miles from the hearing.  Lawyers can also submit taped pre-trial deposition footage when specific deponents are dead, unavailable due to mental or health complications, precluded from testifying on privilege grounds, or inaccessible after reasonable attempts to procure their appearance through court orders and service of process.  Courts will also consider pre-trial deposition footage in exceptional circumstances or in the interests of justice.

While California courts allow parties to use pre-trial deposition recordings as evidence, you’ll still need capable and compliant tools to record these depositions properly. CaptureCast Legal’s recording platform includes easy-to-use tools that attorneys of all technical backgrounds need to prepare their pre-trial depositions for production.  Visit CaptureCastLegal.com to learn how our recording platform can enhance your trial and litigation capabilities.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

5 Ways Video Can Help Your Firm Beyond Litigation

Whether you’re taping depositions, filming arbitration proceedings, or evaluating your associates’ trial performance during practice sessions, your firm can benefit greatly from incorporating legal videotaping platforms into your litigation game plans.  Just because you’re considering investing in legal video recording platforms, however, doesn’t mean you only have to use them for your cases. Much like Swiss Army knives, legal recording platforms feature tools you can leverage for a wide array of purposes. Whether you’re building up your referral network or enticing promising associate recruits, legal videotaping platforms can benefit your firm in ways beyond recording footage for disputes.  All, of course, without involving expensive filming companies in the process. Here are five ways you can leverage legal video platforms to augment your firm’s initiatives.

  • Use Your Platform for Video Content Marketing

So long as you don’t make misrepresentations, publish misleading or materially false claims, or engage in fraudulent and dishonest conduct, video content marketing can be essential to your marketing efforts. Although you cannot directly solicit prospective clients for ethical reasons, you can run campaigns that target broad categories of individuals who may be interested in your services.  With video, you also have a much higher chance of motivating them to schedule initial consultations. According to a recent Animoto study, 93% of marketers said they successfully landed new clients from their social media videos.  With a flexible and intuitive legal video recording platform, you can film intimate one-on-one videos and prepare clips to publish and distribute across your social media channels. When producing and publicizing content, make sure you conform to relevant ethics rules in each state you’re licensed in. California attorneys, for example, must ensure that any content published on their firms’ websites satisfy California’s lawyer advertising ethics rules, along with other content that expressly or implicitly implies their availability to work on cases. While New York doesn’t automatically consider informative legal content to be subject to state advertising ethics rules, it does when a lawyer’s content expressly or implicitly indicates the attorney or firm’s availability to work on law-related client work. 

  • Use Video to Create Compelling CLE Content

One key area where video has revolutionized the legal sector is how lawyers approach their continuing legal education (CLE) requirements.  While some states still require newly-admitted attorneys to fulfill their credit hours in person during their initial reporting periods—including New York and New Jersey—most U.S. states allow lawyers to fulfill their CLE credits by watching videotaped courses.  Lawyers can also gain CLE credit by leading presentations, including those that are pre-recorded.  With a legal video recording platform, you can show sample clips, conduct interviews, and incorporate footage to add depth to your presentations.  Law firms that qualify as CLE providers can also use video platforms to record and distribute their presentations to participants.  Doing this will not only help you fulfill your own CLE requirements but also help position for invaluable colleague referrals.

  • Incorporate Video into Your Associate Training Practices

While aspiring lawyers are permitted to practice the moment they fulfill their legal education requirements, pass their bar exams, and clear their character & fitness examinations, this doesn’t mean they’re truly ready to handle real cases off the bat.  While most law school graduates are rigorously trained in legal theory, they aren’t as well-versed with the practicalities of day-to-day trial work.  Nonetheless, the median first-year associate salary hovers around $155,000, while some multinational firms are offering $190,000 annually to their new associates.  Unsurprisingly, clients are becoming more and more dissatisfied with funding on-the-job training for new associates assigned to their projects, and are shifting more of their legal work in-house.  Fortunately, your firm can use video to help train and develop your associates. With legal video recording platforms, you can review your associates’ performance during mock trials, onboarding interviews, and live depositions. You can then supplement any feedback you provide them with video to review.  You can also extend these training efforts to address how your associates are handling client meetings and, in turn, foster rainmaker traits that drive in clients and business. As a 2018 Altman Weil study on the law firm landscape revealed, roughly 83% of lawyers surveyed believed their firms were chronically under-performing because they hired attorneys with poor business development skills.

  • Publish Videos Geared Toward Recruiting

Video can also be a powerful way to build your firm’s brand with potential recruitment candidates. One recent Glassdoor study featured in Fast Company discovered that organizations are three times more likely to recruit higher-quality candidates if they invested in branding.  In addition, these organizations were 70% more likely to obtain higher-quality leads if they made substantial investments in the onboarding experience.  You can use your legal recording platform to interview associates about their first-year experience, film partners discussing their case achievements, and highlight your firm’s community outreach and diversity efforts. Taking these steps can help position your firm as a career destination for competitive associate recruits.

  • Use Videos in Ways That Build Up Your Firm’s Internal Culture

Video can be helpful for not only attracting candidates but also encouraging them to stay.  This is especially true in the legal space, where lateral associate hiring grew by 22% in 2018. Most lawyers believe this isn’t a one-time trend; in fact, 72.2% of lawyers surveyed by Altman Weil believe that this is a permanent development that law firms must respond to. Creating an environment that engages your associates and partners can help boost happiness and productivity.  According to Gallup, highly engaged business units realized a 41% reduction in absenteeism, a 17% increase in productivity, and 24% less turnover than other units.  Highly engaged units also drove a 10% increase in customer ratings and a 20% increase in sales. Through video, you can hold team-building exercises, shoot day-in-the-life videos featuring your associates, tape speeches and other footage for internal events and film fun media-related activities to boost employee and associate morale at your firm.

Legal videotaping platforms can add tremendous value to your firm beyond litigation. CaptureCast Legal offers everything you need to create captivating professional videos and provides an intuitive platform that enables lawyers of all technical backgrounds to propel their marketing and recruiting initiatives.  Visit CaptureCastLegal.com to see how our tools can help elevate your practice.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

5 Ways Video Can Help Your Litigation Strategy

While it’s true that more lawyers are embracing technology, a substantial percentage of them are not leveraging opportunities to use it in the courtroom.  According to the American Bar Association (ABA)’s 2018 TechReport, roughly 1 in 5 of the lawyers surveyed do not leverage any form of technology in the courtroom.  On top of this, about a third of the lawyers surveyed mentioned they do not have the necessary training to use technology to their advantage.  These developments don’t bode well for winning over today’s jurors.  Jurors demand that issues not only be discussed, but visually presented in easily comprehensible ways. Using video allows lawyers to leverage liberal federal and state procedural laws that embrace multimedia evidence.  Here are some ways that litigators will benefit by using video in their litigation strategy.

  • Using Video to Boost Your Opening Statement

Research shows that 80-90% of jurors will have already made up their minds on how to rule on cases during or after opening arguments.  Naturally, lawyers must do what they can to win over jurors during their opening arguments to increase their odds at prevailing. Federal courts give lawyers leeway regarding how they can use video during their opening statements. Federal Rules of Civil Procedure (FRCP) Rule 32, for example, permits parties to use taped deposition testimony for any purpose the Federal Rules of Evidence allows.  In fact, lawyers in jury trials must present deposition evidence in non-transcript format if they’re not using it for impeachment purposes.  However, parties may still need to submit transcriptions of their deposition clips, especially if they plan to offer these clips as substantive evidence.  Many states also allow lawyers to incorporate video into their opening statements.  Texas, for example, permits non-stenographic depositions and related transcripts to be used for any purpose during civil proceedings. California also allows parties to use taped depositions so long as certain filming and notice conditions are met and any prejudicial or objectionable sections are edited out.  Incorporating taped pre-trial testimony can be effective for adding visual elements to your opening statement and providing deeper context to the certified transcripts juries will review. 

  • Provides More Emotional Impact When Impeaching Witnesses

While lawyers can use strategic cross-examination questions to impeach a witness for making inconsistent or false statements, they can leave a stronger impression on juries by showing filmed proof of those statements as the witness squirms on the stand. Under FRCP Rule 32(a)(2), parties can submit pre-trial depositions into evidence in any non-transcript form—including in video format—for the purpose of impeaching or contradicting a witness’s testimony.  Texas, New York, and California have similar stances regarding how depositions can be used in state court proceedings. This strategy would not only help shed light on the deponent’s contradictory responses, but also place heightened emphasis on telling non-verbal cues accompanying the witness’s inconsistent or dishonest responses.  Featuring these details can provide added power to your impeachment efforts, especially since the deposition transcripts juries end up reviewing don’t include notes on the deponent’s body-language or physical and emotional reactions to questions.

  • Allows Juries to Consider Testimony of Unavailable Witnesses

Unfortunately, emergency situations can happen that can keep you from bringing witnesses onto the stand. With video, these obstacles can be surmounted. FRCP 32(a)(4) and related state procedural rules generally allow parties to submit videos in lieu of in-courtroom depositions in circumstances where the witness died; is located more than 100-150 miles from the site of the hearing or proceeding; or is hampered by illness, age, infirmness, or imprisonment.  Subject to certain circumstances and motion outcomes, California and New York also allow parties to submit pre-trial depos of licensed healthcare practitioners even if they are otherwise available to testify. The rules also provide leeway to admit taped or livestream depositions in other scenarios where a witness’s testimony must be taped in the interests of justice after considering the benefits of in-person testimony before an open court.  By embracing video, parties can include key testimony onto the record that would have otherwise be precluded by circumstances beyond the control of the parties and their attorneys.

  • Help Juries Better Digest Complex Information During Trial

While the digital revolution has revolutionized many aspects of our lives, it has had a detrimental effect on our attention spans.  One study from Microsoft Canada revealed the average human’s attention span dropped from 12 seconds to 8 seconds from 2000 to 2013.  For comparison’s sake, the attention span of a goldfish clocks in at 9 seconds.  To win over jurors, you’ll need to engage them off the bat—and visual aids such as video can do just that.  One recent study from Australia, a common law country like the United States, found that a third of the experienced civil jurors surveyed found it difficult to concentrate in cases lasting more than 10 days, compared to a fifth of jurors who sat through cases of all lengths.  When asked for feedback on ways to improve the courtroom experience, 17% of the jurors who provided specific feedback stated they wanted lawyers to provide visual aids to assist them with the decision-making process.  Using video can be a great way to weave in audio and visual elements that leave a lasting impression on jurors.

  • Can Help with Developing Your Overall Trial Preparation Strategy

Video’s role in litigation isn’t limited to your courtroom activities. You can use it just as effectively when preparing for your case outside the office, including using it when giving feedback to witnesses on their conduct during mock questioning.  Taking these steps will help you meet your ethical obligations for competently representing your clients, so long as you don’t influence clients and witnesses to testify falsely or present answers intended to thwart discovery or be misleading.  You can also use video to evaluate how your associates are handling different lines of arguments and counterarguments, and even use it to supplement feedback from mock juries and trial consultants.

Regardless of how you use video in litigation, incorporating it can greatly increase your odds of helping your clients prevail in litigation.  CaptureCast Legal can help lawyers of all technical backgrounds harness the power of video testimony efficiently and cost-effectively.  Contact us to see how CaptureCast Legal can help with your litigation strategy.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

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