video transcripts?
I have recently read several District Court decisions, in which very firm adverse findings have been made against Plaintiffs.
These outcomes and recent experiences on the hearing of a couple of appeals, when in my view, understandably, it was clear the Court of Appeal had difficulty appreciating the tone of evidence given at trial, lead me to think, why on earth aren't trials, particularly where clearly beforehand likely to turn on credit findings, videotaped as well as audio transcribed.
As every Plaintiff lawyer knows, it is extremely difficult to contest on appeal a trial judge's findings if based on credit conclusions. Quite rightly, it is recognised that a trial judge has a substantial advantage over an appeal court, through seeing and hearing the witness' give evidence, rather than just having a transcript of the words said.
The question is why should this advantage/disadvantage continue today, with modern technology? Video recording facilities can now be found on mobile phones and software to track content, mark-up or bookmark such video is widely available at negligible costs.....
Quite apart from appellate review, wouldn't it be a great advantage for a trial judge to be able to go back to key passages of evidence when formulating reasons (or be taken to them by Counsel in the course of closing submissions)?
I for one think this is worth investigating further. If I can, I will seek the court's permission to video transcribe the next trial we do, in which credit is likely to be important. Let me know your thoughts..
An interesting concept, and one that is yet to be resolved. There is also a recent Virginia Law Review article dealing with some of the other issues to be considered if video recording was to open questions of credibility on appeal, including the ever-present finality and floodgates arguments: http://www.virginialawreview.org/content/pdfs/96/643.pdf