How to Hire a Deposition Videographer

The videographer forgets to alert the attorney that he is running out of tape, and the attorney continues to question the witness while the tape is being changed;

The video is delivered to the client in a format that needs conversion to a different file type to be optimal for litigation; or

The sync file the videographer supplies with the video is faulty or in the wrong format.

At best, these problems can cause you to waste time and money fixing them. At worst, they can have a devastating impact on your case. Videotaped depositions may end up being used in lieu of live testimony if the witness lives outside the subpoena range, or if it would be too expensive to fly a witness to trial and put her up in a hotel. Or they can be used for impeachment of a live witness, or to give the jury a peek inside his pre-trial, pre-rehearsed demeanor (you know, before he's gotten his hair cut, bought a suit, and been heavily coached to respond to cross-examination with one-word answers). Whatever the use for a deposition video, if it is problematic or unusable, you may lose a significant litigation opportunity.

In areas outside major urban centers, it can be hard to find good deposition videographers. And while they are more common in major cities, it can be challenging to suss out the good from the bad, especially if you're a small- to mid-sized firm that doesn't have a lot of experience with videotaping depositions.

Follow these tips to find a videographer who understands the legal world and can produce what you need for your case.

If you have a court reporter with whom you work regularly, ask her for a reference to a videographer, since she will have likely worked with many of them. Or ask other attorneys or litigation support specialists in your area.

If you've exhausted the search for recommendations and need to turn to the Internet, don't just search on “videographer;” make sure to focus your queries by using terms like “litigation” and “depositions.”

Once you find a videographer, ask these 10 basic questions to get a better sense of how experienced ' and skilled ' he or she really is.

1. Does the videographer have experience taping depositions?

This may seem obvious, but I have heard of depositions being taped by people who mainly record weddings and graduations. Unless you have no other options, you shouldn't just use any old videographer; the stakes are too high. You need someone who will be sure to capture the moment when the deponent has a temper tantrum, or shows complete befuddlement when answering the key questions about the dispute at issue. If your videographer misses a crucial moment, you don't get a second chance. Ask the candidate if he's affiliated with a court reporting service or if he specializes in taping depositions. A “yes” answer is a good indication that he at least understands the field, but you still need to do your due diligence to find out if he's any good.

Put another way, if the videographer's website has wedding video samples on it, be afraid ' unless you're getting married right after the trial, of course.

2. How much experience does she have?

There's no substitute for experience. You're looking for someone who has been recording depositions for two or three years ' or has done a lot of them over the last year.

3. What experience have others had with him?

Ask for references ' not just from the attorneys but from paralegals and litigation support professionals. Attorneys often only see the finished product and they may very well say, “Sure! He was great!” But they never saw the many problems that had to be fixed. As a trial tech, I see (and fix) problems with videos all the time. It's often the people on the back end who understand how good a videographer really is.

4. How does he handle changing tape?

Even in this digital age, many videographers still record to tape, which has limited capacity. Over a typical deposition, a videographer may have to change tapes three or four times. Planning ahead for these changes and alerting the attorney about them is one of the primary skills of an experienced deposition videographer. I have seen many videos with a few minutes missing from them due to the videographer simply not telling the attorney that the tape will need to be changed soon. So find out if your candidate uses tape. If he does, ask how he ensures that nothing will be missed during tape changes. There is not a right answer to this, you're merely trying to assess whether he has considered this question before, and to see if his answer shows confidence about this important element.

5. How does she balance the audio?

Pointing a video camera at a person sitting in a chair and talking is relatively easy. Capturing what she's saying and making sure all the levels are right ' that's where the true skill comes in. Ideally, each attorney and the deponent should have lavalier microphones (aka, lapel mics) plus a table microphone. You also want your videographer to use some kind of audio mixer to balance the sound levels and avoid having a boomingly loud question from the attorney followed by a nearly inaudible answer from the deponent.

6. Does he synchronize the video deposition to its transcript?

If a video is worth being videotaped, it is usually worth being synchronized to the transcript. Synchronizing the video makes it searchable by word or page/line, which enables you to easily review key portions of the testimony. Video depositions that will be played at trial need to be synced so you can create and modify your clips quickly.

If your candidate says, “yes,” follow up with “do you do it in house or send it out?” Sending it out isn't bad ' sometimes it's even preferable if the videographer isn't well versed in synchronization. But you'll want to be sure your videographer is sending it out to an experienced vendor.

If the videographer does syncing in-house, ask if he can provide sync files in for TrialDirector (CMS), Sanction (MDB), LiveNote (PTF/VID), and Summation (SBF). This is a test question; you probably don't really need all those formats. But any professional sync shop can provide these formats. If the videographer sounds confused or says you don't need these, take it as a red flag ' he's probably inexperienced.

7. Can you get the best format?

You want a video format that will play back on a computer (rather than just a DVD player), so that you don't have to convert it before synchronizing and using it for trial. In general, MPEG-2 is best suited for this.

8. Is she a notary public?

Rules on this vary from state to state but in some states (including California), videographers taping physicians or expert witnesses for use in lieu of live testimony must be authorized to administer an oath. Check your state's laws and your videographer's credentials carefully.

9. Go big box

In most areas of my life I favor mom and pop operations over chain stores. But when it comes to video depositions, I'm also a big fan of consistency in quality. Bigger companies with regional networks often have standardized systems in place, even when they're using contractors. That means you can count on a fairly consistent work product, even when your depositions are recorded in different cities by different videographers.

10. Stick with the winners

All of this may seem like a long and difficult process and I agree; it can be. But quality truly can vary among videographers. Because of that, I highly recommend using the same person over and over once you find someone good. I'm always surprised at how law firms will use just anybody to perform this crucial task. A bad video probably won't make or break your case, but good video can definitely enhance it.

Michael Skrzypek is The Focal Point's Trial Support Manager. His expertise draws on over 10 years of experience in litigation support. He has been in charge of organizing and presenting evidence at dozens of trials, arbitrations, Markman Hearings, and mock trials. Skrzypek co-authored The Trial War Room Handbook: Effective Strategies in the Trenches, published by the American Bar Association. He can be reached at [email protected].

A couple of years ago, I was in trial presenting clips from a video deposition of a key witness who could not be subpoenaed to appear live. This was the jury's only chance to see the witness, hear his testimony, and assess his demeanor. Unfortunately, the videographer who recorded the deposition did a very poor job recording the audio, and the attorney's questions were booming, while the witness's answers were almost inaudible. I had to turn the audio up and down, depending on who was talking, and while I'd like to think I did a pretty good job with the volume knob, it was surely a distraction from what the witness was saying.

In the 15 years I've worked in litigation support, I've seen thousands of videotaped depositions and the quality varies far more than you might think. It's not that your average videographer will forget to turn on the camera (although I'm sure that's happened), it's that there are fairly common problems specific to video depositions that an experienced deposition videographer knows how to avoid, such as:

Audio levels that are too low, too high, or, as in the above example, both;

The videographer forgets to alert the attorney that he is running out of tape, and the attorney continues to question the witness while the tape is being changed;

The video is delivered to the client in a format that needs conversion to a different file type to be optimal for litigation; or

The sync file the videographer supplies with the video is faulty or in the wrong format.

At best, these problems can cause you to waste time and money fixing them. At worst, they can have a devastating impact on your case. Videotaped depositions may end up being used in lieu of live testimony if the witness lives outside the subpoena range, or if it would be too expensive to fly a witness to trial and put her up in a hotel. Or they can be used for impeachment of a live witness, or to give the jury a peek inside his pre-trial, pre-rehearsed demeanor (you know, before he's gotten his hair cut, bought a suit, and been heavily coached to respond to cross-examination with one-word answers). Whatever the use for a deposition video, if it is problematic or unusable, you may lose a significant litigation opportunity.

In areas outside major urban centers, it can be hard to find good deposition videographers. And while they are more common in major cities, it can be challenging to suss out the good from the bad, especially if you're a small- to mid-sized firm that doesn't have a lot of experience with videotaping depositions.

Follow these tips to find a videographer who understands the legal world and can produce what you need for your case.

If you have a court reporter with whom you work regularly, ask her for a reference to a videographer, since she will have likely worked with many of them. Or ask other attorneys or litigation support specialists in your area.

If you've exhausted the search for recommendations and need to turn to the Internet, don't just search on “videographer;” make sure to focus your queries by using terms like “litigation” and “depositions.”

Once you find a videographer, ask these 10 basic questions to get a better sense of how experienced ' and skilled ' he or she really is.

1. Does the videographer have experience taping depositions?

This may seem obvious, but I have heard of depositions being taped by people who mainly record weddings and graduations. Unless you have no other options, you shouldn't just use any old videographer; the stakes are too high. You need someone who will be sure to capture the moment when the deponent has a temper tantrum, or shows complete befuddlement when answering the key questions about the dispute at issue. If your videographer misses a crucial moment, you don't get a second chance. Ask the candidate if he's affiliated with a court reporting service or if he specializes in taping depositions. A “yes” answer is a good indication that he at least understands the field, but you still need to do your due diligence to find out if he's any good.

Put another way, if the videographer's website has wedding video samples on it, be afraid ' unless you're getting married right after the trial, of course.

2. How much experience does she have?

There's no substitute for experience. You're looking for someone who has been recording depositions for two or three years ' or has done a lot of them over the last year.

3. What experience have others had with him?

Ask for references ' not just from the attorneys but from paralegals and litigation support professionals. Attorneys often only see the finished product and they may very well say, “Sure! He was great!” But they never saw the many problems that had to be fixed. As a trial tech, I see (and fix) problems with videos all the time. It's often the people on the back end who understand how good a videographer really is.

4. How does he handle changing tape?

Even in this digital age, many videographers still record to tape, which has limited capacity. Over a typical deposition, a videographer may have to change tapes three or four times. Planning ahead for these changes and alerting the attorney about them is one of the primary skills of an experienced deposition videographer. I have seen many videos with a few minutes missing from them due to the videographer simply not telling the attorney that the tape will need to be changed soon. So find out if your candidate uses tape. If he does, ask how he ensures that nothing will be missed during tape changes. There is not a right answer to this, you're merely trying to assess whether he has considered this question before, and to see if his answer shows confidence about this important element.

5. How does she balance the audio?

Pointing a video camera at a person sitting in a chair and talking is relatively easy. Capturing what she's saying and making sure all the levels are right ' that's where the true skill comes in. Ideally, each attorney and the deponent should have lavalier microphones (aka, lapel mics) plus a table microphone. You also want your videographer to use some kind of audio mixer to balance the sound levels and avoid having a boomingly loud question from the attorney followed by a nearly inaudible answer from the deponent.

6. Does he synchronize the video deposition to its transcript?

If a video is worth being videotaped, it is usually worth being synchronized to the transcript. Synchronizing the video makes it searchable by word or page/line, which enables you to easily review key portions of the testimony. Video depositions that will be played at trial need to be synced so you can create and modify your clips quickly.

If your candidate says, “yes,” follow up with “do you do it in house or send it out?” Sending it out isn't bad ' sometimes it's even preferable if the videographer isn't well versed in synchronization. But you'll want to be sure your videographer is sending it out to an experienced vendor.

If the videographer does syncing in-house, ask if he can provide sync files in for TrialDirector (CMS), Sanction (MDB), LiveNote (PTF/VID), and Summation (SBF). This is a test question; you probably don't really need all those formats. But any professional sync shop can provide these formats. If the videographer sounds confused or says you don't need these, take it as a red flag ' he's probably inexperienced.

7. Can you get the best format?

You want a video format that will play back on a computer (rather than just a DVD player), so that you don't have to convert it before synchronizing and using it for trial. In general, MPEG-2 is best suited for this.

8. Is she a notary public?

Rules on this vary from state to state but in some states (including California), videographers taping physicians or expert witnesses for use in lieu of live testimony must be authorized to administer an oath. Check your state's laws and your videographer's credentials carefully.

9. Go big box

In most areas of my life I favor mom and pop operations over chain stores. But when it comes to video depositions, I'm also a big fan of consistency in quality. Bigger companies with regional networks often have standardized systems in place, even when they're using contractors. That means you can count on a fairly consistent work product, even when your depositions are recorded in different cities by different videographers.

10. Stick with the winners

All of this may seem like a long and difficult process and I agree; it can be. But quality truly can vary among videographers. Because of that, I highly recommend using the same person over and over once you find someone good. I'm always surprised at how law firms will use just anybody to perform this crucial task. A bad video probably won't make or break your case, but good video can definitely enhance it.

Michael Skrzypek is The Focal Point's Trial Support Manager. His expertise draws on over 10 years of experience in litigation support. He has been in charge of organizing and presenting evidence at dozens of trials, arbitrations, Markman Hearings, and mock trials. Skrzypek co-authored The Trial War Room Handbook: Effective Strategies in the Trenches, published by the American Bar Association. He can be reached at [email protected].