How to Create Video that Will Win Cases
By Robert Neale
Most attorneys neither understand nor care about the technology behind their video. They rely on other professionals to handle those issues for them and understandably so. After all, a video is just a small piece of a bigger puzzle in your case. There's an old saying ... what you don't know "can" hurt you. As with anything else, there are a few things to know about video that can either help you or hurt you and your case. Let's take a look at some of the purposes for the video in the first place.
State Your Purpose
Your video is part of your evidence. One day you may potentially have to take your video evidence to court and present it to a judge and jury. So naturally, you'll want it to look as good as it possibly can, right?
The true answer to this question is actually a double edged sword. Your video conveys "something" about your case to you, your opposing council, the judge, and jury. Therefore, you must distinguish what type of message you want it to portray to the jury before you create the video.
Unfortunately, many times we just have to deal with what we get, but if you make informed choices before you create your video, it will save you time, money, and potentially have a better impact when and if the time comes.
The properties of video differ greatly between say a video deposition and a surveillance video. In a surveillance video, the jury looks for a specific act, best portrayed by action and not words. So in this instance the quality of the picture is very important, especially if you plan to enlarge portions of the video at some point. Obviously, if you see the defendant actively and repeatedly stabbing his victim with a rusty spoon resulting in serious injury to the victim, it isn't really relevant that he is singing the national anthem while he is committing his crime (unless maybe he has entered an insanity plea). The fact is you see him stab the victim and we all know that stabbing is just not allowed.
With deposition video, the jury listens to the testimony of the witnesses and looks at their demeanor as a secondary means of communication. The combination of voice, tone, and actions make up the components that we process to fully understand that communication, and ultimately how it will be accepted by the jury. In this scenario, it is generally more important to have better sound than better picture.
So why can't we just have both? Well we can. But let's focus for a moment on deposition video, understand how it affects our case, and what makes for a good video deposition.
The Video Experience
As they say, a picture is worth a thousand words but an experience is all powerful, especially at trial. But what is it that makes that experience so powerful? The combination of the three elements noted above make up an experience in a video deposition. However, the single most important component of your video testimony may surprise you.
So you've got this great video of the witness stuttering, sweating and fidgeting profusely while he testifies. He's obviously lying through his teeth and your video is sure to impeach his credibility with the jury. Well consider for a moment ... what if your entire jury were blind? A video or text deposition wouldn't be much good in that case would it? However, your blind jury would still be able to hear the testimony and distinguish demeanor in the deponent's voice. While it is very unlikely that a blind person would serve on a jury, theoretically it could happen.
Many people who have all of their senses intact still have different ranges of vision. In fact, almost everyone sees the same thing just a little differently. Oddly enough we all hear about the same with minor variations, volume being the key factor. So even though we see differently, we all hear pretty much the same way. These are some of the determining factors to consider when using video testimony.
Hey wait a minute ... He just said we could have both didn't he?
Yes I did and yes you can, but here's the kicker. At some point you may have to use that video in court. Have you considered how to use it? Are you going to watch it on a TV with a VHS tape or maybe a DVD? Or maybe ... if you're a TechnoLawyer you'll want to watch that video via your computer and incorporate it into your electronic case at trial.
If you're not a techno-savvy lawyer, you're probably going to use 100 year old technology to handle your case anyway, so you can skip this next part and go grab a sandwich. For the rest of us, now is a good time to pay attention.
Video consumes a huge amount of your computer's resources and taxes it to its limits. In the technology world, there are times when we have to sacrifice something to gain something else. In this instance, it is a quality for space substitution. This pertains to Robs law: # 341, page 10, section 2, paragraph 1 (a) that says ... "For every payoff in life there is a cost." Raw uncompressed video takes up an enormous amount of space on our hard drive and it takes a huge amount of processing power and memory just to play it. Furthermore, there are media and accessibility issues that complicate video playing on your computer to the nth degree.
We can compress our video to make smaller files which makes it easier to access, store, and view. But when we compress video, we take out some of the information contained in the video to make it smaller. The compression process takes out small amounts of unnecessary or repetitive information we usually never know is in there in the first place, leaving us with a useable product we can still see and hear. But it's not high definition TV by any means.
Did you know that when you compress video, you have a choice of what types of information you throw out? Your video editor can (if he knows what he's doing) control which information is cut and which is saved (i.e. the picture or the sound). Knowing this, what would you ask of your videographer now?
When you're cutting down your video testimony to make it manageable, sacrifice the picture not the sound. There's nothing more distracting to a jury than trying to watch a movie they can't hear. It will absolutely have a negative impact on the jury with regard to the point you are trying to get across to them. Poor sound quality in video deposition testimony is absolutely #1 on the courtroom no no list. So if you ever have to use your video in court, you'll be glad you made a "sound" choice.
Get What You Need
So why in the world would I need to know all of this when I have people who do just this sort of thing for me in the first place?
Good question. You would be surprised at the number of videographers out there shooting and editing video who have no idea how much more important the audio quality is to your case than the video. Neither do they consider the psychology of the video and its significance to you as an attorney or your jury. After all they are video professionals not lawyers or psychologists.
Generally your videographer will give you the best video product he can but when it comes to the technical and psychological side of video production (if there is such a thing), many fall short of the techno mark. Furthermore, most of us rely on our trusty court reporter to find a competent videographer for us. How much knowledge does your trusty court reporter really have about video? Are they savvy enough to make a competent choice in a videographer for you? Will you get what you need or settle for what you get?
Be smart. Be informed and be techno savvy. After all, you are a TechnoLawyer and it's your case, your time and your clients money on the line. The more you understand about the tools at hand, the more effectively you will be able to use them when the time comes.
Copyright 2005 Robert Neale. All rights reserved.
About the Author
Robert Neale is a highly experienced litigation technology specialist. Robert has a background in information technology training and litigation support training with over 13 years as a trainer and systems engineer. He is currently the managing partner at Access Litigation Support Services in Atlanta, GA. Access provides litigation technology services including trial and war room services and training, to law firms in the eastern US.
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In this document, any reference to "jurist" or "lawyer" includes, where appropriate, "Québec notary".