Court DV
Posted Oct 6, 2004

From Inherit the Wind and The Caine Mutiny to Perry Mason, A Few Good Men, and the O.J. Simpson trial, we've all seen the spellbinding drama that affairs of the court can yield. Thus one would assume that the growing field of legal videography might lend event videographers looking to broaden their horizons the perfect opportunity to showcase their dramatic chops. As in litigation itself, in some cases that's true, but more often than not, legal videography involves little or no theatrics. It's less about drama than the law itself.

But that doesn't mean it's not a potentially lucrative, challenging pursuit in which ambitious videographers can make their mark, even if the work is predominantly pro forma. Credentials and reputation may be even more important on the legal side of videography than on the event side.

After all, we're not just talking about video that makes the grade of personal preference, or does a given event justice (which is not to denigrate the quality or professionalism of event video in any way). We're talking about video that may or may not be deemed admissible in a court of law, and thus isn't measured in subjective terms of quality so much as conformity to clearly delineated federal rules of evidence and civil procedure. And while most of us think of legal videography as taping depositions and little else, there's much more to it than that.

Courting Videography
Often called court videography or forensic videography, legal video has expanded categorically as attorneys have seen what a powerful weapon video evidence can be. Today, lawyers increasingly call on videographers to assist with their cases in a variety of ways. Says American Guild of Court Videographers (AGCV) founder Gayle Marquette, "Depositions are a very small part of legal videography. But they've opened the doors to all other types of legal video." Today, legal videography breaks down into six major categories.

Video depositions: taped depositions for use and presentation in trial
Video wills: on-camera readings and signings of a testator or testatrix' last will and testament
• Video settlement documentaries (VSDs): video demonstrations of a plaintiff or defendant's case to be shown at a preliminary hearing, designed to prevent a case from going to court
Day in the Life video: brief documentaries in which an attorney can illustrate how an injury or incident affected the daily life of his or her client • Pre-construction video surveys: comprehensive documentation of the areas surrounding a construction site before work begins, designed to pre-empt future lawsuits alleging property damage caused by construction in those areas
Construction draw videos: videos that document the completion of contractor "milestones" in a construction project.

Some of these sound rather dry, even tedious, and they are—by definition. With pre-construction and construction draw videos, for example, much of the videographer's skill is applied to exhaustive coverage and attention to detail; with depositions, it's adhering to the relevant rules of evidence (see "The Letter of the Law") and producing a document that a judge won't dismiss.

If you're an accomplished event videographer considering branching out into legal video work, much of the wizardry that you achieve in the editing suite will have no place in legal projects. In fact, as enriching as it's been to have legal videography go digital and embrace both DV and DVD—"That's the newest and most exciting part of doing legal video," says Marquette—non-linear editing and DVD output were initially met with as much apprehension as appreciation. "There was a lot of concern that judges would not allow it," Marquette says, given "the ease of altering digital recordings."

The key issue in almost all instances with legal video is that you're not presenting entertainment, drama, or even argument, per se; you're presenting evidence. Day in the Life documentaries—used, at least in part, to draw an emotional response from the jury—run the greatest risk of being ruled inadmissible at the first hint of emotional manipulation. Music and narration, for example, are verboten.

If you do try to edit for emotional impact, you'll have to be subtle enough about it that the judge won't see what you're doing and throw it out. "The main thing a judge will not allow is for these documentaries to appeal to the emotions of the jury. They want the facts. That doesn't mean that a juror won't get emotional when they see how someone's life has been destroyed by someone else's cause. We just don't show all the blood and guts," says Marquette.

This translates into specific video editing techniques—and most importantly, a lack of artifice. "We instruct our members not to use any fancy bells and whistles, fancy backgrounds or music, or CG [computer-generated] reenactments," Marquette continues. "We can do live interviews, but we don't use pro voice-overs or actors or scripted narration." An effective and acceptable Day in the Life video, he says, is "pretty much a straightforward videotape of the person trying to do what they do every day to show how their life has been altered." He also recommends keeping it short—10-15 minutes at most. "You're going to have to try and hold a jury's attention. Go past 15 minutes and you have a problem."

Settling for More
With VSDs, which are only viewed outside of official court proceedings, videographers have much more flexibility, and more opportunities to use your editing and production chops. "Settlement documentaries are pre-trial hearings where the mediator is trying to get the parties to agree out of court on an acceptable settlement," says Marquette.

In an article on the National Court Reporters Association Web site (www. ncraonline.com), certified legal video specialist Frederick S. Aumick describes settlement video as "a highly effective video documentary…produced with the expectation that it will help the parties arrive at a settlement of the litigation, thereby reducing ongoing costs, and especially the costs of a trial, for all parties." Significantly, he notes, "It is also not evidentiary. Under normal circumstances it will never be played in a courtroom." As to style, he says, "Because the VSD is not evidence, you can use different camera techniques than...in a video deposition. As an example, we quite frequently use very tight headshots, focusing the viewer on the emotions being played out on the screen."

Not only can VSDs be more dramatic and more stylized than depositions and Day in the Life videos, they can also be longer. "You've got the attention of the attorney on the opposing party for 20-25 minutes. There are no limits onto what the content can be. You can use scripted narration, pro actors, zoom, and other video techniques," he continues. "You're trying to convey the facts in such a way that the opposing party realizes that they haven't got a tinker's chance of winning if this goes before a jury."

In describing "the most important benefit" of video settlement documentaries, Aumick explains it as follows: "It enables the decision makers to see the plaintiff's position in the case, without the filtering of defense attorneys… [C]laims adjusters, claims managers, and high-level insurance company executives may not be aware of weakness in their case, or the strength of the plaintiff's case. They may not be aware of the full extent of damages, all of which will cause them to evaluate the case differently than if they had the proper data."

Under Construction
How and when pre-construction video surveys come into play is perhaps less obvious, but they are nonetheless a tremendously important part of legal videography practice—not to mention an indispensable legal tool. "Whenever there's a major construction project—a highway, bridge, a mall, etc.—there are always lawsuits," Marquette says. "These can come from injuries to workers, or damage to other properties. We're always concerned about lawsuits of adjoining property owners who would claim damage."

He cites an example involving a recent construction project that took place in Casper, Wyoming, where AGCV is based. A storm sewer on the corner adjacent to the site was crushed, and the owner of the adjacent property sued for the $35,000 required to fix the sewer. The defendant got the claim dismissed because he had a videotape, Marquette says, "that showed that that damage existed before the first piece of equipment was rolled in."

Marquette cites another instance of a pre-construction survey involving a five-mile highway project in California. The survey parameters included complete coverage of every inch of property extending three blocks on each side of the highway—with date and time recorded by the camera on all the footage—"showing everything that might be defective prior to construction starting." It's tedious work to be sure, but as Marquette says, when public projects face "frivolous lawsuits" involving wrongly claimed pre-existing damage, a comprehensive survey can "save the taxpayer a great deal of money."

And speaking of money, what does legal videography typically pay? According to Marquette, it varies by region. East- and west-coast legal videographers typically command $125-$150/ hour for their services, while legal video jobs in the Midwest pay roughly $90/ hour. "Most legal videographers wouldn't go out the door for less than $250." The real money is in the finished product, however. "Documentaries can bill out as high as $2,000 per finished minute," Marquette says.

The Letter of the Law
Like any other exhibits or evidence introduced into court proceedings, legal video introduced as evidence must meet specific rules of evidence and procedure, both in content and presentation, to be deemed admissible in a court of law. Under U.S. Federal Rules of Civil Procedure, Section V, Depositions and Discovery, Rule 30, Deposition Upon Oral Examination, there are several points that apply specifically to the production and use of legal videography in the courtroom.

First and foremost is Federal Rule of Civil Procedure 30(b)(4), Notice of Examination: Production of Documents and Things. The rule reads as follows:

(4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28 and shall begin with a statement on the record by the office that includes (A) the officer's name and business address; (B) the date, time and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recorded medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound recording-techniques [emphasis mine]. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters. (For the full text of Rule 30, visit www.nlva.com/1.html.)

A legal videographer also must be familiar with the Federal Rules of Evidence. Of particular importance to preparers and presenters of video evidence is Article I, General Provisions, Rule 106, Remainder of related writings or recorded statements. This rule can be interpreted to suggest the risks of edited video being challenged or ruled inadmissible:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously.

Of even more specific interest are several Rules under Article X, Contents of Writings, Recordings, and Photographs, including Rule 1001, Definitions. As explained in Rule 1001(2), videotapes (and by extension DVDs) are lumped in the same definition as photographs, which means that all rules governing the introduction of photographs as evidence apply to video evidence as well:
Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.

Article X, Rule 1002 may bear on the introduction of DVDs as evidence as well, when the original source material is a videotape of some kind:
To prove the content of a writing, recording, or photograph, the original…is required.

Finally, Article X, Rule 1006 on "Summaries" expands on the implications of Rule 1002 in a manner that may be relevant to edited documents like a Day in the Life video:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart summary, or calculation. The originals, or duplicates, shall be made available for examination, or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

Obviously, there's lots of legalese to absorb here, and all of it is pretty far afield from the kind of occupational information that most event videographers carry around with them and find relevant to their work. All of which leads one to wonder how much of this stuff a videographer really needs to know to pick up a few legal video gigs. After all, if you're being hired for your shooting and editing skills, shouldn't you be leaving the law to the lawyers?

Not so, says AGVC founder Marquette. "The attorneys are not the experts in the area of legal video," he explains. "They've got too much to worry about. They expect the videographer to be the expert, and depend on us to produce a product that is acceptable and won't be impeached." And what is that expertise worth? "If anybody is doing video, taking testimony under oath" who doesn't know or follow the rules, Marquette says, "I could get their product thrown out of court in five minutes flat."

Associations and Certification
Given the degree to which attorneys tend to rely on legal videographers' subject matter expertise, certification is paramount in legal video the way, say, credible referrals and impressive demo reels enable event videographers to broaden their client base and keep a steady flow of work coming in. Given that the majority of legal videography is done by independent videographers rather than designated media experts within law firms, according to Marquette, where do they go to cultivate their specialized knowledge and acquire credentials in the field?

There are three main associations for videographers: National Court Reporters Association (NCRA) and American Guild of Court Videographers (AGCV), both of which provide certification, accreditation, and membership benefits such as a listing in an online videographer directory; and the National Legal Video Association (NLVA), which provides member benefits such as online and print (annual) directory listings, a quarterly journal, insurance (health, life, and production), and discounts on hotels, car rentals, and long distance telephone service for active members.

According to its mission statement, "The purpose of the National Legal Video Association is to create and improve upon the understanding of the role of the legal videographer among members, customers, attorneys, judges, the court system, legislators, and regulators, and the bar to ensure that NLVA members are the preferred professionals who capture the video record." The NLVA Web site also includes extensive "Federal Rules" pages which includes the complete text of Rule 30 of Civil Procedure.

NLVA offers four types of memberships: Corporate ($200; full membership for corporations, agencies, and organizations excluding a directory listing and link on the NLVA Web site), Corporate Internet ($250; same as corporate, plus directory listing), Individual ($100; full association membership sans listing and link), and Individual Internet ($150; same as Individual, but including the directory listing and link). NLVA offers a membership card and certificate of membership as an additional benefit, but no actual accreditation or certification—the card and certificate indicate only that you've paid for a membership.

In addition to member benefits such as online directory listings, training seminars (including e-seminars), discussion lists, a sourcebook and journal, insurance, equipment discounts and leading options, and an annual convention, NCRA offers certification. Membership itself costs $210 annually for Participating Members (court reporters), $125 for Associate Members (other occupations), and $60 for Student Members.

Members who wish to apply for Certified Legal Video Specialist (CLVS) credentials must complete a three-step process. First, they attend "Videotape in the Legal Environment," a two-day seminar (followed by a one-day symposium) offered twice a year in two different cities (the next one takes place in San Diego in March 2005). Step two is the Written Knowledge Test, offered the first Saturday in May and November in roughly 100 cities throughout the U.S. The test covers such topics as video recording production, post-production, legal and judicial procedures, office procedures and operating practices, and professional development and epics. Candidates must score 70% or better to pass.

The final step is the Production Test, "which tests a candidate's knowledge and ability to handle video equipment and conduct videotape depositions," according to the NCRA Web site. "During this test you'll run the show at a staged deposition and be graded on your ability to follow videotape deposition guidelines and produce a usable, high-quality videotape of the deposition. Each candidate has a maximum of thirty minutes to familiarize him/herself with the NCRA-provided equipment and to conduct a five to ten-minute mock deposition." Certification is maintained via a $40 renewal fee each October.

The AGCV offers a similar combination of paid membership benefits and rigorous certification criteria, although, according to AGCV founder Marquette, AGCV's requirements are more stringent than the NCRA's. "We've got people who are certified through [NCRA] who come to us for advanced training. I have guys come to me for certification who have been doing it for 20 years," he says, and when they're exposed to the techniques and procedures presented in AGCV training, "they are appalled at what they've been producing all those years."

Marquette—a former television producer who became interested in legal videography when he was the plaintiff in what he calls a "major lawsuit," and has since written two books on the topic—founded the AGCV in Casper, Wyoming in 1995 with the intention of professionalizing the business at a time when the mass availability of camcorders made it easier for pretenders to enter the field ill-equipped.

AGCV trains videographers in "all aspects of visual evidence," according to Marquette, and all phases of the process: "We teach our people to be able to do legal videography for the court from conception to completion," he says, "and that even means presenting the evidence in the courtroom when it goes to trial."

Paying your membership dues allows you to add "AGCV" to your business card. To earn the "CCV" designation (Certified Court Videographer), you have to complete AGCV's training process and pass the test. "AGCV means you've joined the guild," Marquette says. "CCV means you've proven your credentials."

Certification begins with a home study course, or through attending one of AGCV's three-day seminars (the association holds a seminar each month in Casper; other seminars happen in cities such as Chicago, Las Vegas, Dallas, and Philadelphia). The seminars include extensive instruction on all types and aspects of legal video; 2.5 hours, for example, are devoted exclusively to the preparation of Day in the Life documentaries. The first day covers nothing but depositions, Marquette says, while Day Two is devoted to the "vast majority of other types" of legal videos. Day Three covers marketing and pricing services.

Then comes the exam: 200 questions covering "scenes of incidents, proof of damages, mock trials, insurance fraud, pre-construction surveys," and more. Candidates must score 80% or better on the written test and successfully demonstrate their ability to set-up and record a deposition (among other hands-on tasks) to gain certification. A $400 fee for the test and training program also includes AGCV membership, which is renewable annually for $79.

While getting certified doesn't guarantee a videographer work in the legal field, it's certainly helpful; AGCV's membership rolls of 600 (80% of whom are certified) attests, if nothing else, to the perception of the weight it carries. Which certification (CCV or CLVS) counts for more is anyone's guess, and probably varies by the type of job and the law firm contracting the videographer. What's most significant, arguably, is the trend toward professionalizing the field, and establishing standard criteria for professional videography.

There's also a functional imperative to the trend, according to the FAQ on the AGCV site, based on how Marquette and others in his association expect the field to evolve: "We do not know when the legal profession is going to demand that those videotaping depositions must be ‘certified' but just as sure as you are reading this information, it is going to happen and maybe sooner rather than later."

For more on legal videography, please see Sidebars 1 and 2

Sidebar 1: I Am Third

One important role the videographer can play in construction projects is serving as a disinterested third party as recognized by the court. The involvement of such a third party is especially important in "construction draw" videos where the videotaping captures whether or not a stage of a job has been completed, and therefore serves as the essential document in the relationship between an employer and a contractor or subcontractor.

The videographer can also play the necessary "disinterested third-party" role when taking depositions that adhere to Rules of Civil Procedure and are thus admissible in court. In recent years, courts have gone back and forth on the issue of whether a professional videographer is required to prepare video depositions, with the rationale being that if the deposition is taken, say, by a staff member of the plaintiff's attorney, some bias may be introduced.

In a recent ruling by Louisiana's Fourth Circuit Court of Appeals involving a medical malpractice case, the court reversed a previous decision and determined that a professional videographer was indeed required for video depositions. The decision stated, in part, "It is clear that the Code of Civil Procedure article points out that accuracy and trustworthiness of the videotaped deposition must be provided for. In any non-videotaped deposition, a certified stenographic reporter is required in order to protect the objectivity and validity as well as the accuracy and trustworthiness of the transcribed deposition. It would be inconsistent to provide for a certified professional reporter to be used when transcribing and not to require that a professional videographer be used in a videotaped deposition…We conclude that a party seeking a deposition, is desirous of using a videotape of that deposition, shall provide a disinterested professional videographer to take the deposition."

Sidebar 2: YesLaw

One interesting product and service that has found its way into the legal video realm comes from YesVideo, a company best known for consumer products like YesDVD that give non-technical users with legacy film, VHS tapes, photo prints, and slides a mail order/kiosk-based service for converting those aging analog sources into fully indexed DVDs. [See "Bringing It All Back Home: Apex Brings YesDVD to Set-top DVD Recorders," February 2004, pp. 10-12.]

YesVideo provides a similar service for litigators and legal videographers called YesLaw that takes the raw footage of a deposition video, encodes it, and prepares a CD (or occasionally a DVD) that includes indexing, chapter-marking, and—most importantly—audio/transcript synchronization and searchability using the company's own YesEdit software. "When the attorneys get their deposition videos from the videographer, the CDs will often include our software," says YesVideo VP of sales and marketing Bob Wilson. "This simple tool will play video in synch with the transcript, and enable them to make and export clips for their presentations."

The features on each CD or DVD depend "on the needs of the customer," Wilson says. "We generally encode the deposition videotape onto a CD. If the customer provides the transcript with the videotape, we'll index the video to the corresponding line in the transcript. The YesLaw software enables the attorney to search the video for keywords or page/line references—something that is otherwise impossible with a linear tape. When they find these segments, they can export clips to other programs such as PowerPoint or Sanction for presentation."

As DV editing and DVD authoring become increasingly known quantities, and more digital-savvy videographers enter the legal field, synchronization remains perhaps the biggest draw for the YesLaw service. "Synchronization dramatically simplifies the process of finding key elements," says Wilson. "If you want to see how someone said something, just enter those keywords. There's no longer a need to fumble around with rewinding and fast-forwarding a tape to find the ‘Perry Mason' moment."

Wilson sees the growth and professionalization of legal videography not as a threat to outsourcing services like YesLaw, but rather a boon for YesVideo's business in the legal arena. "Not only are we excited to see legal videography emerge," Wilson says, "we are hearing that our tools are developing the legal video industry by making video easier for the attorneys. Many of our customers have seen their video business grow as they offer our service—now that attorneys see the real value of video."

Resources

American Guild of Court Videographers, www.agcv.com www.legalvideographers.com
Legal Information Institute (Overviews: Federal Rules of Evidence and Civil Procedure), www.law.cornell.edu/rules/fre/overview.html  www.law.cornell.edu/rules/frcp/overview.htm
National Court Reporters Association, www.ncraonline.com http://clvs.ncraonline.com
National Legal Video Association www.nlva.com
YesVideo (YesLaw) www.yesvideo.com