Video Deposition Clips at Trial and the California Code of Civil Procedure

Before I start rambling on why making clips is so easy and great for trial, it is important to be aware of the California Code of Civil Procedure that pertains to video clips and the use of them during trial. We have heard from many attorneys that having these clips for trial has had a huge impact on the outcome of their case. I mean, how would it not?!  How would a jury react when they watch that pivotal moment in the deposition where a pregnant pause in his/her testimony said so very much.

So with this in mind, there are two CCP codes I want to concentrate on, 2025.340(m) and 2025.620 regarding video clips used at trial. There are quite a few sections that go with CCP 2025.340, but for the purpose of this blog, I am only focusing on those areas in the code and how to create clips yourself.

California Code of Civil Procedure 2025.340(m).

(m) A party intending to offer an audio or video recording of a deposition in evidence under Section 2025.620 shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered. That notice shall be given within sufficient time for objections to be made and ruled on by the judge to whom the case is assigned for trial or hearing, and for any editing of the recording. Objections to all or part of the deposition shall be made in writing. The court may permit further designations of testimony and objections as justice may require. With respect to those portions of an audio or video record of deposition testimony that are not designated by any party or that are ruled to be objectionable, the court may order that the party offering the recording of the deposition at the trial or hearing suppress those portions, or that an edited version of the deposition recording be prepared for use at the trial or hearing. The original audio or video record of the deposition shall be preserved unaltered. If no stenographic record of the deposition testimony has previously been made, the party offering an audio or video recording of that testimony under Section 2025.620 shall accompany that offer with a stenographic transcript prepared from that recording.

California Code of Civil Procedure 2025.620.  

At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition and did not serve a valid objection under Section 2025.410, so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following provisions:

(a) Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the deponent as a witness, or for any other purpose permitted by the Evidence Code.

(b) An adverse party may use for any purpose, a deposition of a party to the action, or of anyone who at the time of taking the deposition was an officer, director, managing agent, employee, agent, or designee under Section 2025.230 of a party. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing.

(c) Any party may use for any purpose the deposition of any person or organization, including that of any party to the action, if the court finds any of the following:

(1) The deponent resides more than 150 miles from the place of the trial or other hearing.

(2) The deponent, without the procurement or wrongdoing of the proponent of the deposition for the purpose of preventing testimony in open court, is any of the following:

(A) Exempted or precluded on the ground of privilege from testifying concerning the matter to which the deponent’s testimony is relevant.

(B) Disqualified from testifying.

(C) Dead or unable to attend or testify because of existing physical or mental illness or infirmity.

(D) Absent from the trial or other hearing and the court is unable to compel the deponent’s attendance by its process.

(E) Absent from the trial or other hearing and the proponent of the deposition has exercised reasonable diligence but has been unable to procure the deponent’s attendance by the court’s process.

(3) Exceptional circumstances exist that make it desirable to allow the use of any deposition in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.

(d) Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340.

(e) Subject to the requirements of this chapter, a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced.

(f) Substitution of parties does not affect the right to use depositions previously taken.

(g) When an action has been brought in any court of the United States or of any state, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the initial action may be used in the subsequent action as if originally taken in that subsequent action. A deposition previously taken may also be used as permitted by the Evidence Code.

So what is a clip? And how do we create clips?

First, let’s focus on what we mean by “clip.” In the legal world we usually know it is being created from a videotaped deposition and, of course, happening post deposition. I recently addressed this in another blog, Synchronize or Not to Synchronize a Video Deposition? A clip is a small segment of the video deposition, no matter how short or long. You are not editing or removing anything, just cutting down the video deposition into smaller video segments. It typically starts what a question from an attorney and ends in an answer from the deponent.

There are multiple ways to create clips once you have received your synchronized video deposition. Some of the most popular software in the industry used for creating clips are DepoView, YesLaw, and Trial Director. For this blog, I will only refer to DepoView, the most popular, and how to create clips from a synchronized video provided from your trusted videographer.  You will know that your video is synched through DepoView as this will display when you open the file.

First, you’ll need to download a free version of DepoView. It’s fast and easy and you can keep it right on your desktop for easy access. Open up DepoView and bring up the video deposition, most likely from a DVD or thumb drive, and it’ll look like this.

DepoView

 

Select the Hi-lite icon that is circled above. You would then click on the page and line number you want to start on and drag down until you decide where you want the clip to end.

 

DepoView

 

Select the Clip icon, what I have circled in the above photo. Once the new screen opens, it’ll appear like this below.

DepoView

You have all the regular functions of Play, Stop, and Rewind. It is important to listen to the beginning and the end of the clip so you know the first words and the last words are on the audio. If you want to add or remove time, you will need to edit the clip. By doing this, you will select the Edit icon that is circled above.

 

DepoView

 

To add additional seconds or remove seconds on the clip either at the beginning or the end, you will press one of the four buttons I have circled above. This will add/remove 1 second to the clip. Shift + one for those four buttons will add/remove 1/10 of a second. Such a great tool for creating clips!

You can listen and edit as much as you please. When you are all set and done, select Save at the top of the screen. This will take you to your list of clips where you get the option to rename it.

 

DepoView

 

If you want to create more clips, select Done, and start the process over with the Hi-lite icon. To get back to your clip(s), select the Clips tab at the top left, then select Show Clip List.

When you are ready to export from DepoView, select the Export icon at the top of the clip list and it will appear like the photo below.

DepoView

 

You will have several options on where to export: export to a folder, email to a recipient, use for a PowerPoint presentation or for TrialDirector Case. Depending on how you want to export the clips, the following options will change once you decide and select Next.

However you decide to use your clips, below is how it will appear to someone who is watching it on a laptop.

 

WindowsMedia

 

Utilizing these instructions and getting the most out of your synchronized video depositions will not only change your trial presentation, but will greatly impact your case for the better. You may have better control over your case when the viewer can perceive the person on video rather than reading their testimony and/or save you money with expert witnesses that cannot make it to trial. Whether you’re showing the clips to your clients or colleagues or showing the clip to the jurors, you have the capability to choose the moments you want to share. 

If you have any questions about this, feel free to contact us at (800) 322-4595 or email me at sarah@woodrandall.com. To learn more about our video services, view our All Things Video page at www.woodrandall.com.

In another related article, we discuss Synchronize or Not to Synchronize a Video Deposition?