Legal Videography

It is not quite standard practice, but video depositions are becoming increasingly common even if the lawyers involved do not expect to use the video at trial. Of course, there are times when a video deposition is needed, such as when a witness is infirm, might be close to death, is overseas, or will be unavailable for live testimony at trial. These circumstances will, by rule, be designated as evidence depositions and will be taken pursuant to those rules.

Other than evidence depositions, when considering Noticing a discovery deposition via video, there are some advantages and disadvantages to consider. Note that cost is not too much of a factor since having a deposition videotaped does not increase the cost substantially. Further, a written transcript is almost always needed, so a video discovery deposition does not necessarily save the costs of transcription.

The disadvantages involve a number of issues. First, setup and arrangement can be more complicated. This involves questions of an appropriate visual setting. These include an appropriate chair and proper background for the witness, correct and effective lighting, placement of counsel, framing, and other visual factors. Second, witness preparation can require extra resources for the attorneys presenting the witness. In effect, the preparation is more akin to preparing a witness for trial. This includes requiring the deponent to wear formal clothing, accessories, hair, and makeup with an “eye” toward how the video would appear to a judge or jury. Preparing the witness with respect to body language and other visual clues is also important.

Third, the same preparation is needed for the lawyers who will be present in the video (or, alternatively, it should be agreed that only the witness will appear on camera). Fourth, lawyer preparation is needed to enhance question “flow.” In a non-video deposition, if a lawyer takes 10 seconds to think of the proper follow-up question, that 10 seconds does not appear in the written transcript. In a video deposition, however, that time gap can be jarring and would potentially require some editing if the video were presented to a jury.

Those disadvantages being listed, there are a great number of advantages to video depositions. These include:

• Taking the visual “measure” of a witness — lawyers know that some witnesses present better than others in a courtroom; issues like posture, mannerisms, visual clues of truthfulness, etc.; video depositions can capture those visual measures;
• Visual measures are available for lawyers new to the case — it is not uncommon for one set of lawyers to “work up” a case and, later, for a set of trial lawyers to take over; video depositions allow new lawyers of the case to make their own assessments of the witnesses; further, that measure is preserved even if the trial occurs years later;
• If used at trial, a video deposition is more useful to a jury than having a written deposition read to them (and more interesting) — the jury can see the visual clues that help their judgment with respect to credibility;
• Video tends to help keep witnesses and counsel well-behaved during the deposition — lawyers tend to fight less on camera;
• Conversely, the video shows “bad” behavior in a deposition — such as anger and bullying tones — in a way that cannot be shown on paper;
• Video depositions tend to be quicker — this is partly because the lawyers involved tend to be more prepared and tend to do less “fishing”.

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Deposing a witness is a headache. There is coordination, fees, preparation, and numerous other things to consider. Deposing an international witness can be even worse. In addition to the standard procedures you have to undertake, there are other things to consider as well. What are the internal laws of the witness’s home country? Do you need an interpreter? Must you first submit a request through the Hague Evidence Convention?

While difficult, international depositions are by no means impossible. Proper preparation, like every other stage of litigation, is the key.

In addition, here are some helpful things to consider:

• What local laws are there where the witness is?
• Do you need a visa for you and the court reporter to perform the work in the foreign country?
• What oath requirements are there?
• Do you have to make travel arrangements for a diplomatic officer from a consulate?
• Can you compel testimony if the witness is unwilling?
• How can you reserve a location? Can this be done by video-conference?

Some countries strictly forbid pre-trial discovery, while others allow it in limited circumstances. Further, if the country is a member of the Hague Convention, that adds another layer of difficulty.

Certain processes can be used to get evidence without a deposition. Things such as letters rogatory and letters of request can be used. Thankfully, if you only need documentation, this is a much easier procedure. But, they can be time consuming and expensive.

However, you can tailor requests to your needs. It is important to talk to an expert in this area to determine what is right for your situation. Preemptively, the client should be warned that a substantial expense is forthcoming. Finally, be careful to not go on a fishing expedition.

Earlier this month, a march at the U.S.-Mexico border erupted into chaos as U.S. border protection agents fired tear gas into the crowd, which included small children. After the incident, which made international headlines, human rights experts (and many others) are questioning whether or not the U.S.’s use of force was legal or even justifiable.

What Happened?

The incident occurred at the busiest border in the world – San Ysidro crossing, which links Tijuana and San Diego. A photo taken by a Reuters journalist showing a woman fleeing a tear gas canister with her two young daughters – both in diapers and one without shoes – sparked outrage across the globe. A group of Central American migrants were peacefully protesting in Mexico when the protest got out of control. The result was Mexican police blockading and the migrants fleeing toward the Ysidro border. Responding to the chaos, U.S. border patrol officials temporarily shut down the border in both directions and began firing tear gas into Mexico to push back the migrants from the border fence. U.S. border officials state that some migrants where throwing projectiles at customs and border workers prior to the shut down.

International Concerns

International human rights legal experts have referred to language in the United Nations Charter (UN Charter) regarding the sovereign rights and obligations of member countries. Specifically, Article 2 prohibits nations from the threat or use of force against the territorial integrity of other member states. In short, if the migrants were on U.S. territory and presented an immediate threat, the use of tear gas to disperse them under certain conditions could be justified. Some other legal experts note that the tear gassing was in clear violation of Mexico’s territory and an interference in its affairs. Human rights activists contend that the use of tear gas was excessive and would still be even if the migrants were on U.S. territory at the time it was used.

Many of those migrants gathered at the Ysidro border intended to seek asylum in the U.S., raising questions as to whether the use of tear gas subverted their rights under international law. Article 14 of the Universal Declaration of Human Rights states that every person has the right to seek and enjoy asylum from persecution in other countries.

The U.S.’s Reasoning

While international treaties on the use of chemical weapons in war bans tear gas, according to the Organization for the Prohibition of Chemical Weapons, it is legal for federal authorities and police to use tear gas domestically in situations in which riot control is necessary. The U.S. Customs & Border Protection has guidelines for when its officers are allowed to use less-than-lethal force, which includes tear gas. The guidelines dictate, in part, that this force can be used when empty-hand techniques are not enough to control violent or disorderly individuals as long as it is a reasonable and necessary response. According to the federal agency, American border officials have fired tear gas near the southern border with Mexico a minimum of 126 times since 2012.

While nursing mothers have had to endure shaming whilst breastfeeding in public – something that is likely not going to end any time soon – now they have the law on their side. Earlier this year, public breastfeeding became legal in all 50 states. This became possible thanks to two states – Idaho and Utah – that passed laws that protect breastfeeding mothers, according to a news report published by USA Today.

National Breastfeeding Month

August is National Breastfeeding Month. Accordingly, below is a list of rights and protections nursing mothers have in the United States.

• Mothers can now breastfeed anywhere, any time, in all 50 states, as well as the Virgin Islands, Puerto Rico and Washington, D.C.;
• 17 states have laws on the books that address breastfeeding mothers who are called for jury duty; some allow postponement of jury duty while others allow an outright exemption;
• Under ACA, the cost of breastfeeding pumps is covered at no cost to the mother, although the insurer can choose the brand and type (electric, manual or rental) that is covered under the policy;
• Lactation consultant costs are also covered at no charge by health insurance under ACA, including meetings with in-network consultants, domestic violence counseling, and gestational diabetes testing;
• Employers must provide break time for nursing mothers and a place to pump breastmilk, for up to one year after the baby’s birth, according to the Department of Labor;
• 29 states, in addition to the District of Columbia and Puerto Rico, have laws on the books regarding breastfeeding in the workplace;
• Six states, in addition to Puerto Rico, have encouraged the development of or implemented breastfeeding awareness education campaigns. These include California, Illinois, Minnesota, Missouri, Mississippi and Vermont.

Under Nevada law, the statutes note that breastfeeding a child is not considered a violation of indecent exposure laws, and that a mother may breastfeed in any private or public location, where the mom is otherwise allowed to be located.

Other Protections for Mothers

It is estimated that at least 180 countries across the globe have laws that guarantee some type of paid maternity leave. Only nine countries do not provide this benefit – Papau New Guinea, Surinam, six Pacific island nations, and the United States. In America, four states – California, New Jersey, New York, and Rhode Island – offer paid leave that is funded through payroll taxes.

The Bureau of Labor Statistics (BOL) reports that more than 41 million U.S. workers can not take a paid sick day to care for a child who is ill; moreover, a mere 12% have access to paid leave. According to the Atlanta-Journal Constitution, the state of Georgia ranks 44th in the nation when it comes to working mothers. And, under Georgia state laws, maternity leave is not mandatory; neither mothers nor fathers have extensive rights under its laws. Moms generally have the option to buy short-term disability insurance before getting pregnant – and this is how they are able to earn maternity leave after the baby is born. That being said, dads are unable to file a short-term disability claim under these insurance policies for parental leave.