By Gene Betler
The first time a court reporter works with a legal videographer can be a challenge if the two record-makers are not knowledgeable about how they can best work together and how their two products – the transcript and the video – can complement each other. Starting with a few basics can help keep surprises to a minimum. While one of my favorite sayings is “Never say always and always avoid saying never,” what are discussed here are my opinions on most depositions. There are always exceptions to the rule.
When a court reporter and videographer both appear at a deposition, who is responsible for what?
The true answer to this question is both are responsible for their own record. As we all should know, it takes one party to go on the record and all to go off. In a deposition where one attorney said to go off-record and another said no, I would not want to be the court reporter who quit taking the testimony because the videographer said, “We are off the record.” Nor would I want to be the videographer who turned off their camera just because they noticed that the court reporter quit writing. So the real question is not who is responsible, but who should handle which task.
One of the first things that CLVS candidates hear when they first attend the Certified Legal Video Specialist Seminar to begin certification, is that the court reporter creates the official record and the videographer creates evidence of the deposition. This distinction and a little common sense determine who should take the lead on each task. For example:
- Going on or off the record should go to the videographer because, before anyone can go on the record, the videographer must ensure that all of the recording devices are recording. The first item on the video record is the read-on, which is done by the videographer. (This is the video record’s version of the title page.) Going back on the record after a break requires another announcement from the videographer. And, immediately after announcing being off the record, videographers need to make sure that everything is set so that we do not inadvertently record off-the-record communications.
- The oath needs to be administered by the Officer of the Court. The term “Officer of the Court” can mean different things in different states; for instance, in some states, in order to swear in a witness, court reporters must become a notary public in addition to being a court reporter, while in other states, a court reporter’s role is considered to be that of an officer of the court. Overall, tradition gives the task of swearing in witnesses to the court reporter. There has always been the question: Does the videographer need to be an officer if the court reporter is the one creating the official record and is an officer? In any particular case, the answer can vary based on the laws, rules, and orders in effect, but a recent ruling by a federal judge in Illinois illustrates that obtaining a notary license is, at the very least, a best practice for legal videographers. The judge ruled that even though a court reporter was present, who was an officer, the videographer was prohibited from recording the deposition because he was not. The judge went on in his comments to state that when multiple recording methods are used, each method needed to have its own officer responsible for compliance of the Federal Rules of Civil Procedure. While this ruling may not pertain to every case, the CLVS Council strongly recommends that all legal videographers maintain a notary license.
- Who is responsible for timing depositions? The truth of this item is that it is the responsibility of the attorneys not to go over the time limits set for the depositions. As a videographer, court reporter, or officer of the court, I would never stop the deposition because of the duration of the deposition unless I was asked to do so, by all parties, and I agreed to it in advance. The videographer needs to keep a record of the run times of the recordings to make sure that we do not try to exceed their limits. During the deposition, we might be asked, “How long have we been on the record?” A simple addition of the run times will provide an accurate account. Therefore, the videographer is often viewed as the timekeeper.
- Exhibits are a part of the official record and, therefore, fall under the care of the court reporter. A videographer should never assume that this help would be wanted or appreciated without discussing it with the reporter, nor should the reporter assume that the videographer will assist. However, if the court reporter and videographer have an established working relationship, the videographer may offer to help the court reporter by marking the exhibits during the deposition.
- The court reporter should include in the stenographic record all verbal announcements made by the videographer while on the record.
Does the court reporter need to file a different form or note anything differently in the caption?
The title page of the transcript should indicate that the deposition was video recorded. As long as the videographer was an officer, this is all that is required by the court reporter. If the videographer is not an officer, then the court reporter would need to comply with the requirements required for the handling and distribution of the video.
Does the court reporter have to give the videographer a copy of the transcript? Is the videographer required to give the court reporter a copy of the videotape? Who is responsible for the videotape after the deposition is finished? Who is responsible for making copies?
It depends.
In many ways, the court reporter and videographer can act separately from one another, and each may go about creating the final product on their own. However, videographers and court reporters who work together can often produce a better product for the client. And, in the case that either the court reporter or the videographer is not an officer of the court, then whoever is the officer assumes the other’s responsibilities and would be required to obtain a copy of their work product.
This question also shows why both the court reporter and the videographer should be Officers of the Court, per the Federal Rules of Civil Procedure, Rules 28 and 30. While Rule 28 tells us what is needed to be an officer, Rule 30(b)(5) Officer’s Duties, states what the officer must state on the read-on, at the beginning of each media unit, and at the conclusion of the deposition. It also states some of the restrictions the officer must adhere to when producing a non-stenographic recording.
Rule 30(f)(3) states that the officer must retain a copy of the recording. Additionally, when paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent.
As a final note, I know that I enjoy working with the court reporter and do everything I can to help them out, but I prefer to be the one being paid for the video work, and I’m sure that the reporter likes being the one paid for the transcripts.
What about a free realtime feed?
The only time when the court reporter would need to give a realtime feed to the videographer is when live streaming of the deposition is occurring, and the video and transcript are going out on a common feed. Otherwise, there isn’t any need for the videographer to have one.
The court reporter can often benefit from a live feed of the videographer’s audio. While court reporters do not necessarily need to accept, most videographers (and all NCRA-certified videographers) should offer the court reporter an audio feed from their recording. Each situation is unique, and if requested by the reporter and provided by the videographer, the reporter should set up early enough to test the connection.
Can you offer any tips from the videographer’s side to make things go more smoothly?
When working with a videographer for the first time, show up early. Let us know your preferences. I have some reporters who want to sit between the deponent(s) and noticing attorney with the deponent on their right side; others want the deponent on their left. Some even want to sit across from the noticing attorney so that they can look at the lips of the attorney and deponent as they are talking.
The videographer typically shows up an hour before the start time to set up and troubleshoot the equipment.
Is there a difference between a videographer’s role in a deposition and in court?
Historically, legal videographers would record depositions, edit the VHS videos, and go into the courtroom to provide playback of the videos. As technology has evolved, not only has the video moved into the digital world, where it can be edited quickly in the courtroom, but more and more of the evidence in a trial is being presented electronically. As the attorney’s file has moved from the file cabinet to the hard drive, software developers were quick to come up with programs to handle not only the organization and storage of the data, but the presentation as well.
Becoming and remaining proficient with the software and using it in the high-pressure environment of the courtroom, where one quick display of the wrong exhibit could lead to a mistrial, has led to a new industry: the trial presentation professional. NCRA, in recognition of this need for education, developed their Trial Presentation Professional certificate program. You can learn more about the program at NCRA.org/trialpres.
So, while we still see some videographers going to the courtroom to present videos, most are specializing in either the legal video specialty or that of the trial presentation specialist, and it is rare to see legal videographers in the courthouse.
More information about NCRA’s Certified Legal Video Specialist program can be found online at NCRA.org/CLVS.
Gene Betler, CLVS, is an agency owner and videographer in Huntignton, W.Va., as well as co-chair of the CLVS Council. He can be reached at gene@brlvs.com.
4 things to know about NCRA’s CLVS program
- NCRA’s Certified Legal Video Specialist program is a three-step process in which candidates must attend the Video in the Legal Environment seminar, pass a Written Knowledge Test, and pass a Production Exam. Candidates must pass with a 70 percent rate.
- NCRA-certified legal videographers, or CLVSs, are trained to work with the reporter to promote, protect, and ensure the production of a quality record.
- Once legal videographers have completed the CLVS program and passed the tests, they must earn 1.0 CEU every three years to maintain their certification, whether they are NCRA members or they are not members. More than 300 CLVSs are Associate Members of NCRA.
- Those who have earned the CLVS certification are required to adhere to the CLVS Code of Ethics, which is available on NCRA’s website.
