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Providence, R.I., lawyer Richard A. Ciccone was up against a tough foe, the Rhode Island Public Transit Authority, and he was concerned that the jury wouldn’t remember the full impact of the critical medical testimony of his expert witness in a personal injury case. Then he was watching “CNN Headline News” one night and he noticed that the news organization’s presentation was effective in keeping viewer attention by showing short video clips and surrounding them with appropriate, concise commentary and bullet-pointed copy. He thought to himself, why not use this “sound bite” philosophy to remind jurors of this complicated medical testimony by showing them snippets of the doctor’s videotaped deposition in his closing argument. Getting the jury to digest and understand the medical testimony, some of which came from 900 pages of records, was going to be critical to prevailing, he said. After getting permission from the judge to make this unusual presentation at his closing argument, Ciccone went to work crafting his audiovisual presentation. He credits the trial technique, in part, with the jury last month awarding his client $5,000 in out-of-pocket medical bills plus more than $147,000 in past and future costs, expenses and lost life opportunities. The original settlement offer his client rejected was $5,000. In 1983, Ciccone was the first lawyer in Rhode Island to use video deposition as witness testimony ( State vs. Oakes 458 A2d 1083). But he was unsure whether the judge would allow it for closing argument. And unsure whether the RIPTA defense attorney would object. “In 1983, the issue was whether a video deposition would be allowed, and whether the video testimony would be admissible in court. At that time, the Superior Court ruled that both issues were OK only if the witness was unavailable,” said Ciccone, who noted that the witness could not appear in court because of poor health. EVOLVING RULES Over the years, the Superior Court Rules of Criminal and Civil Procedure have evolved with a 1993 ruling to a Ciccone motion in Coffey vs. McManus (631 A2d 833 R.I. 1993). In Rule 30(b)(2), the court ruled that not only could videotape be used for the two witnesses who could not appear, but for all witnesses. Now, with Rule 32(a)(E), the court, realizing conflicting schedules and the expense of bringing in expert witnesses, has ruled videotape depositions can be used whether the witness was available or not. So, in his most recent case, Emma Walker vs. Rhode Island Public Transit Authority, Ciccone used the videotaped medical testimony of orthopedic surgeon Peter A. Pizzarello to show the jury that his client, even though she had previous back problems, was injured significantly when a RIPTA bus cut across three lanes of traffic and struck her car on Nov. 24, 1998. Walker contended that the negligence of the bus driver was the cause of the accident and proximate cause of injuries to her back and neck. In preparing his summary, Ciccone wanted to highlight several points that the doctor had made, but he realized they would have more impact if the jury saw the expert making the statements again, not just listening to the lawyer drone on about what the doctor said. In his motion to Superior Court Judge Edward C. Clifton, Ciccone pointed out that use of already approved video testimony was no different than the use of photos, charts or an anatomically correct medical model. In addition, Ciccone noted he would only use testimony that had been previously allowed in as evidence. Clifton agreed, granting the motion as long as Ciccone provided defense counsel James Kelleher with an advanced copy of the excerpts to be used. Ciccone picked six video excerpts, using the “Headline News” philosophy that shorter was better. The video segments ran 13, 30, 13, 22, 22, and 37 seconds, respectively. The excerpts covered issues such as the doctor’s opinion as to whether the accident was causally related to the pain; the plaintiff’s prognosis; whether the injuries were pain-producing; and whether her injuries were permanent. CHARTING A COURSE In another part of his closing, Ciccone used poster-sized charts with the text of other important testimony blown up so the jury could easily read the material. This has been done before, but Ciccone added a new twist at the suggestion of vendor Providence Blueprint Company by showing the whole page of testimony and blowing up the key question or answer as a bright-yellow, highlighted call-out. The jury’s attention went right to the key information. “We would show a call-out chart, then a video clip, then a chart, then a video clip, etc.,” said Ciccone. “I watched the jurors carefully they were paying close attention. The doctor was the only expert witness in the trial, and seeing him again on tape seemed to reinforce his testimony for them.” According to Ciccone, the court’s only regret was that the courtroom was not already set up for video as an audiovisual vendor needed to bring in and take out all the necessary equipment. This caused an unwanted delay in the courtroom. Providence, R.I., attorney John A. Tarantino, with Adler Pollock and Sheehan, will be addressing the Rhode Island Bar Association’s annual meeting this year on the subject of technology in the courtroom. Although his subject matter is more targeted to using computer databases to access court documents and cases, he was interested in Ciccone’s case. “I haven’t studied the specifics, but it sounds like this was an appropriate use of video, although I agree that turning the closing argument into an audiovisual show is disruptive if the courtroom does not already have the equipment available,” said Tarantino. “I am concerned, however, that the ability to replay videotape testimony could lead to lawyers videotaping all their witnesses something which I would not like to see. After all, even though the testimony is on tape, the video is not the official court recor; only the transcript is official,” he said. Nevertheless, Ciccone has again opened the door with his video-aided closing argument, and it’s hard to argue with the results.

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