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remind the deponent that he or she is on camera and that the microphone will pick up this sound. If the videotape is filled with background noises the jury will have a very difficult time concentrating on what the deponent is saying.
• Use proper lighting. Bring a light that you can attach to your camcorder with you in case the location of the deposition is too dark. I have found that generally most camcorders can operate at 1 or 2 lux and often do not need the addition of a supplemental light source.
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• Place the deponent in front of a neutral background. Tis will make it easier for the jury to concentrate on what the deponent is saying.
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her reacting in an unnatural or rehearsed manner? Or, do you want the deponent to constantly be reminded that he or she is on camera? You may want to do this, if you believe that the deponent is more likely to be honest with you when he or she is staring at the camera. Knowing your goal will help you determine where to place the camera or what microphone to use.
If you are not doing the video deposition at your office,
arrive at least one half hour before the deposition is scheduled to begin. Tis will enable you time to set up and test your equipment.
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If at all possible, set up the camera so that it is looking over your shoulder directly at the deponent. Tis will enable the deponent to answer your questions without having to turn his or her head to look at the camera. Te jury will appreciate being able to look at the deponent head on rather than at an angle.
• Do not rely upon your camcorder's microphone. Either buy a lapel microphone that you can attach to your camcorder or a directional microphone that you can set up in front of the witness. Microphones tend to pick up and amplify noises that are not that cognizant to the normal human ear. So keep on the lookout for a deponent who has a habit of tapping a pen on the table or swirling ice in a glass. If this occurs
44 Trial Reporter / Spring 2010
If you are going to ask questions about specific documents or diagnostic films make sure that the camera is situated so as to capture both the document or film and the witness’ reaction to it. Te same goes for demonstrative evidence that you might use in a deposition.
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If it is your witness that is being deposed, make sure to remind them in advance that they are going to be videotaped. It is vital that they be well groomed and professional looking as the deposition may later be shown to the jury.
Don't Forget... • To note the deposition as a video deposition.
• To review the videotape your opponent decides to use at trial to see if the camera angles and zooming are "unduly suggestive" or "otherwise prejudicial." If they are then you can keep the video out under 2-416(c).
• To keep the lights on when you show the videotape to the jury. Turning the lights off is an invitation to sleep.
• Tat an expert witness is a witness of the court and thus cannot be instructed not to answer a question.
• If you are going to use the video deposition at trial,
• Keep the camera on one focal length. Once you set the camera up to record, do not zoom in and out as doing so may lead to a later objection that the manner in which the deposition was recorded was "unduly suggestive" or "otherwise prejudicial" under 2-416(c) and may serve as a basis for excluding it from evidence.
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