Evidentiary — continued from Previous Page
the defense experts during plaintiff ’s case in chief can be extremely powerful in undermining the defense. Unfortunately, judges are still struggling with when and under what circum- stances such testimony is admissible. Because the provisions relating to video- taped depositions are contained in vari- ous sections of Code of Civil Procedure section 2025.010, et seq., and because the rules are different for experts and treating doctors than they are for par- ties, understanding the requirements for video deposition use at trial requires careful study of the code. In a nutshell, the attorney taking the
deposition, or an employee of the attor- ney, may videotape the deposition of any party or lay witness and use it at trial, provided he complies with all of the other notice requirements contained in the code and discussed below. A profes- sional videographer is not required. However, if plaintiff ’s attorney wishes to introduce videotaped testimony of a treating or consulting physician or of any other expert, a professional videographer will have to be hired, unless opposing
counsel is willing to waive that require- ment.
Note: There are good reasons for defense counsel to stipulate that plaintiff ’s attorney may video record the deposition of experts. (1) It’s cheaper. Plaintiff ’s counsel probably will agree to provide a copy of the video on DVD to defense counsel at little or no cost as part of the deal. (2) No matter how skilled and diligent plaintiff ’s counsel may be at videotaping, there is always the chance that she will not capture all of the testimony on the video. (3) The quality of plaintiff ’s video may not be as good as that of a professional, which potentially could work to defendant’s advantage at trial.
California Code of Civil Procedure
section 2025.620 addresses the use of dep- ositions at trial. Subsection 2025.620(d), includes a special provision allowing for the liberal use of video recorded deposi- tion testimony of an expert witness or treating physician, even when the depon- ent is available to testify. In order to take advantage of section 2025.620(d), a party seeking to introduce
such testimony at trial must comply with certain requirements. Section 2025.220(a)(6) requires that the deposi- tion notice include a statement of the party’s “intention to reserve the right to use at trial a video recording of the depo- sition testimony of a treating or consult- ing physician or of any expert witness” and that “the operator of the video cam- era shall be a person who is authorized to administer an oath, and shall not be financially interested in the action or be a relative or employee of any attorney or any of the parties.” So, in order to use videotaped testimony of defendant’s experts, the deposition notice must indi- cate an intention to use them at trial and the video recording must be done by a disinterested, professional videographer. That latter requirement does not
apply to videotaping the deposition of the defendant doctor, however. Code of Civil Procedure section 2025.620(b) states that “an adverse party may use for any purpose the deposition of a party to the action” and it is not ground for objection “that the deponent is available to testify, has testified, or will testify at the trial or
Representing Plaintiffs on Appeal for 30 years
CAALA Appellate Lawyer of the Year (2003) Consumer Advocate of the Year, CAOC Women’s Caucus (2011) CAOC Presidential Award of Merit (2011) Chair-Elect, CAOC Women’s Caucus; CAOC Board of Governors
DANIEL U. SMITH
“What’s New in Tort and Trial Practice” Seminar (co-founder and speakers)
VALERIE T. MCGINTY
www.plaintiffsappeals.com |
dan@plaintiffsappeals.com |
valerie@plaintiffsappeals.com 415.742.4385 | 220 16th Ave #3 | San Francisco, CA 94118
62 — The Advocate Magazine FEBRUARY 2012
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