Video is one of the most powerful but least used tools in the modern litigator’s arsenal, probably because doing video right was too complex and expensive for the average litigator until the recent advent of digital consumer cameras with decent video capabilities and direct digital storage on removable PC memory cards. All that’s changed now and video has become one of the easiest, least expensive yet most powerful weapons in the litigator’s arsenal. I myself shied away from using video until about four years ago when I bought my first modern digital camera.

Almost all consumer digital cameras except dSLR models include some form of video capability; indeed that capability is one of the strongest reasons for choosing a good quality compact digital camera and digital video taken with a consumer grade digital camera has many practical advantages. Some consumer digital cameras even allow you to perform some minor video editing directly with the camera, using the camera’s LCD screen and its review mode menu options. In the long term, though, you’ll want the ability to process your litigation-oriented video clips on your desktop PC. Doing so is much faster and more precise.

Digital SLR cameras are inherently incapable of making video clips, which is one argument for choosing a high grade consumer digital camera over a digital SLR for daily legal use. Although some camera manufacturers like Kodak capture video using Apple’s flexible, compact QuickTime video format (which I greatly prefer), others such as Canon use the old uncompressed AVI file format, which I find much too bulky and unreliable.

Traditionally, we did video with camcorders recording to videotape or to a miniature DVD disk while camera-shaped objects were used to take still pictures. I do not believe that this distinction makes as much functional or economic sense as it did previously. Camcorders are expensive and their output typically requires conversion and processing before it can be used in an Acrobat brief or easily projected from your notebook computer in the courtroom. Camcorder files are very large until processed on your PC into a compressed format like Windows Media Video, making raw camcorder files much more difficult to store on your computer or network. Although a camcorder is useful for recording a lengthy event, such as a deposition, from a single location, even in such cases, an efficient compact digital camera may make more sense these days because it directly records already processed video to a 4GB or larger memory card that can be popped into your computer’s card reader and stored in immediately usable form.

 

Some uses for digital video in a litigation practice:

Here are a few suggestions for using digital video effectively but inexpensively in your law practice. All of them can be accomplished using a decent compact digital camera if it has a good video mode capability.

• Witness statements and inexpensive depositions: a video witness statement can be both more convincing and also easier than interviewing the witness, typing up the statement, and then contacting the witness to sign the statement. Instead, just place your digital camera on a small tabletop tripod (usually about $8.00 or so) and tape the statement. Instead of transcribing it, just produce a CD with the video clip. If you live in a state that allows attorneys to do their own video depositions without a court reporter present, then this approach can allow you to do much more discovery in smaller cases than would otherwise be economically practicable. However, first be sure that the audio quality is adequate for the situation. If audio quality may be a problem, then consider using a camera whose video mode includes optimized audio pickup. For example, the Kodak z812IS long zoom camera includes stereo microphones in the camera, an obvious plus, and the z812IS takes excellent 8 megapixel still photos to boot. For optimum sound quality under difficult circumstances, though, you may need to use a traditional camcorder that has a separate microphone jack.
• Automobile accident scenes: video traffic patterns at intersections and drive through the approaches to an accident site from both directions so that the jury can see exactly what both Plaintiff and Defendant might have encountered when approaching an accident. You can safely do this with a digital camera that has optical image stabilization and that is attached to the side window of your car with a readily obtainable tripod –type mount. I got one at the local Kroger-Fred Meyer store for $25.00 and it works fine.
• Quickly documenting the extent, nature and condition of personal property
• Real property walk-throughs
• Construction activity videos used for demonstrative exhibits, such as typical crane, oilfield or heavy equipment operations.
• Slip and fall accidents: videotape a walk-through of the accident area and the path taken by the injured party prior to the fall and injury.
• Rather than an expensive third party animation that may be difficult to validate and admit under Daubert criteria, use full motion or time-lapse video for your client or experts to prepare their own homespun simulations in your own office to use as demonstrative exhibits.
• Surveillance: This one is obvious if you do defense or family law work. A small, high quality long zoom digital camera such as the Panasonic FZ18 or Kodak z812IS is better for this kind of work than a bulkier and more expensive video camcorder and the image quality usually has a higher resolution as well.
• Play an entire video deposition, such as that by a doctor or out of state witness in front of the trier of fact using a digital projector and large screen rather than a small television set and VHS or DVD player.
• Make video clips of really interesting video deposition testimony to show to the trier of fact in opening and closing statements and for use as cross-examination impeachment testimony. The latter really works and, if you can catch a dissembling witness early on with video of his or her prior inconsistent deposition testimony, this can really shake the witness’s poise on the stand. In one case, I did a discovery deposition of a defense-oriented physician who had done an IME (independent medical examination) of my client and reported unfavorably. As it turned out, some years earlier I had done a video deposition of the same MD and, in that earlier deposition, the MD had stated diametrically opposed opinions. After establishing on video during the new deposition that the MD claimed to have not changed his methods nor opinions over the past several years, I pulled out a DVD of his earlier testimony, played pertinent parts of his earlier deposition to him on my notebook computer, and then entered the CD of his entire previous deposition as an exhibit in the newer deposition. The deposition of that defense expert proceeded much more satisfactorily after that point, even though he was sufficiently experienced that he had testified for the defense a few hundred times. The difference was confronting him during his later deposition with video clips showing him earlier stating precisely the opposite point of view.

Capturing video and converting to a useful format:

You’ll need your video data captured in a readily useful digital file format that can be easily edited and, from which short video clips can be non-destructively extracted. Capturing digital video with a consumer digital camera is usually easier and often much more practical compared to using a traditional video camcorder. That’s because the video captured by a standard consumer-grade digital camera is already digitized in a PC-compatible format by the time that it’s stored on your camera’s removable memory card, thus greatly reducing the hassle of transfer and digitization. When video is in an inherently digital form, as opposed to the analog recording of traditional camcorders, the digital video can be easily edited and shorter clips can be made as needed for insertion into an electronic brief using Acrobat or for direct display in the courtroom.

Digital video, when used, taken at the flicker-free speed of 30 frames per second at maximum quality, used a lot of memory card capacity quickly. Indeed, some older, less efficient digital video formats like uncompressed AVI use as much as three megabytes for every second of video recording, which works out to about 180 MB per minute. More modern and efficient video file formats like QuickTime and Windows Media Video are far more compressed and efficient, producing much smaller files without losing quality. Video file sizes are also affected by how many frames you record per second and the resolution. Obviously, higher resolutions and faster frame speeds take more space. Generally, a speed of 30 frames per second provides optimum quality but 15-20 frames per second is usable for less critical applications when space is at a premium. I will sometimes use a 15 frame per second speed for lengthy witness statements and video depositions and I can sometimes fit up to one hour of testimony on a standard 1 GB SD memory card. Newer cameras often use SDHC high capacity SD memory cards. These are available in sizes from 4 gigabytes through 16 gigabytes at present. That’s more than enough for even a lengthy deposition. Be sure, though, that you have enough space on your network or PC to store such large video files after you’ve transferred them from the camera’s memory card and be sure to fully back up that data regularly. Once you convert these larger original video files to a highly compressed digital format like Windows Media Video, then your long-term storage requirements will be greatly reduced.

If the court reporter or videographer hands you a DVD containing a video deposition, a tape or disk from a traditional video camcorder, then you’ll need to capture and convert the video into a digitized format. You have to do that on your PC before you can use it to make video clips of particularly interesting or damning testimony for use in court or embedded in pleadings. Capturing and converting traditional analog video or DVD video sometimes requires special hardware and software in your PC but you can often just plug your camcorder directly into a Firewire or USB port on your computer, start its playback mode, and transfer the video to your hard disk. Or, you can buy a complete package that includes all of the hardware and software required to capture and digitize video from any source including a DVD or VHS player. Among the latter, I’ve used both the Pinnacle Studio and Turtle Beach combinations with success. In some ways, I prefer the Pinnacle product because it’s easier to set up the capture process and because this program simplifies conversion to the standardized, efficient Windows Media Video format that I prefer.

 

Editing video in your office:

The least expensive editing solution is to download Apple’s QuickTime viewing software and then buy an on-line upgrade that allows you to do basic editing such as trimming a video clip to length. You might also consider the similar Real Player Plus from www.real.com. Either QuickTime Pro or Real Player Plus will provide excellent video playback capabilities and will cost between $30 and $40. I displayed some high definition 1024x768 AVI format video clips on my PC using QuickTime Pro, Windows Media Player, and Real Player and found that each of these standard playback programs worked very well, producing exceptionally sharp, clear output. I took these video clip tests with the high definition mode of my Canon G9 and was very pleased with the results.

High definition video is becoming more common in the newest consumer digital cameras and that’s a real plus. Along with some other vendors, Kodak will ship most of its 2008 models with high definition video modes whose resolution is as high as 1280 x 720 lines (so-called 720p format). High definition Kodak models for 2008 will include their relatively inexpensive but highly regarded z812IS, z1085IS, z8612IS and z1012IS cameras. These should produce video output superior to most existing video camcorders. One short-term caution: I suggest that you do not shoot any video clips with a definition greater than 1024x768 until an updated generation of high definition digital projectors ships. Current digital projectors typically do not exceed a resolution of 1024x768 and hence may not be able to properly display any higher definition video clips. In the short term, 640x480 VGA video clips should not pose any problems with any display device.

Once your needs surpass downloaded products like Real Player Plus and QuickTime Pro, particularly if you need to make clips from video depositions, then you’ll need a more sophisticated video editing program. Editing video and audio files can be daunting if you overdo it and the value of fancy effects is very minimal. This is definitely an area where you should first consider a program’s ease of use rather than advanced features. Among the more usable consumer level video editing programs are Sony’s Vegas Movie Studio, Pinnacle Studio, and Adobe Premiere Elements 4.

Be sure that the software can convert a wide range of video formats into a format that’s compact and efficient, widely used, and compatible with Acrobat and Windows. I prefer converting my digital video files into Windows Media Video (WMV) format. Aside from the efficiency and broad compatibility of this format, it is easy to insert WMV video clips into Acrobat documents and they’re almost always compatible with the basic software on the Court’s own computers, reducing potential compatibility problems and general hassles and increasing the chance that the Court will in fact review any pleadings in which you have included video clips.

Digital video can be processed and edited on almost any Windows PC or Apple Mac with the right software. However, processing video is one of the most computationally demanding office PC tasks, often taking several hours, or even overnight, to complete a single two-hour tape. This is one of the few instances where a really fast PC makes a tangible difference. For this task, buy the fastest PC that you can afford. At the moment, higher end Intel Core 2 Duo and Quad processors have the edge in video processing performance. A slower PC will ultimately do the job just as well if given enough time. In my office, we have a fast spare computer dedicated to video and photo processing so that other work can continue unimpeded. In this case, the faster AMD processors are more than adequate and typically less expensive.

 

Digital Presentation in the Courtroom:

I believe that it’s most effective and facile to combine printed exhibits with digital projection. Properly mounted large still photographs may be easier to handle, especially during presentation of evidence, and may be generally preferred by some judges and jurors. In any event, judges and jurors will need a marked and admitted exhibit during deliberations or in chambers and you will need to ensure that the record is complete in the event of appellate review. Be sure that you mark and admit your largest prints as your exhibits rather than a smaller print. It’s likely that the Court will not allow you to substitute the enlargement later when the case goes to the jury. Consider simultaneously digitally projecting a very large, highly detailed still photographic image. Doing so often has more impact when viewed at a distance by the trier of fact, allows you to zoom in and enlarge critical points such as construction details, and is particularly suited to fast-paced trial aspects such as opening statements, cross-examination and closing arguments. Of course, you should use a digital projector and screen or a very large monitor that’s 42 inches or larger. A digital projector and screen is likely to be less expensive and less awkward.

Because of recent electronic advances by Texas Instruments, high quality digital projectors are now quite inexpensive and available from a variety of vendors for about $800. Choose a top tier brand such as ViewSonic or Epson and be sure that the digital projector has a light output of at least 2000 lumens, that it has at least 1024x768 XGA resolution, and that it synchs with your notebook computer. I suggest deferring any new video projector purchase a bit until the advent of newer digital projectors that include a high definition (HD) video output of 1280x720 pixels in order to match the better quality video now becoming standard on better quality consumer cameras in 2008.

You’ll also need a fast notebook computer to store and play the digital video output to the projector along with a set of good speakers plugged into your notebook computer. At the moment, notebooks based upon Intel’s Core 2 Duo mobile chipsets seem to work best with video streams. Bring a spare notebook whose case data is synchronized with your primary trial machine. Bring a spare projector as well. I’ve had both notebook computers and projectors fail during trial and that’s really awkward unless you can switch over during a short break to a backup system. Luckily, good notebook computers and digital projectors now cost under $1,000 each, so bringing a spare is a lot less expensive than it used to be, and a lot less expensive than doing badly in a case when you have no contingent capability. Be sure to bring enough power and video extension cords, extra power strips, and a remote control mouse-laser pointer combination. Velcro cable ties and wide electrician’s tape are useful for preventing tripping accidents and for making your equipment look neat and business-like to the judge and jury.

Because digital projectors are so versatile and inexpensive, I no longer bother with the extra clutter and hassle of a document camera in court except for highly specific real-time needs such as magnifying a physical object. It’s usually easier, more efficient, and more versatile to just directly project a .PDF image of a document rather than putting a piece of paper under a document camera

Digital projection is unavoidable when you’re using video. I have found video clips embedded in Acrobat pleadings to be a surprisingly powerful means of illustrating important points in a case during pretrial motion practice and that these can then be re-used as part of your trial presentation. Dedicated trial presentation programs can be very effective, particularly with full length unedited video depositions in which the video is synchronized with a simultaneous scrolling display of the typed text of a video deposition. Trial Director, Visionary and Sanction are among the more commonly used programs. Another low-cost but powerful approach is to embed your video presentations in a MS PowerPoint presentation.

When using video in the courtroom, you will need to make it part of the record. I usually provide a CD or DVD containing the video clips or the Acrobat file that includes embedded video clips. Be sure that any CD or DVD that you make uses a standard video file format that’s compatible with Acrobat and with the Court’s own computer equipment. After some trial and error, I have settled upon the Windows Media video and audio file formats. .

Technology is a wonderful aid to courtroom presentation, being faster, more efficient, and more effective. However, there will be times when your in-court technology may fail or simply be cumbersome under the circumstances. As a fail-safe backup, I still take a printed trial notebook and complete sets of printed exhibits with me to court, just in case. And, I’ve needed them on occasion.