Three-and-a-half months before Disneyland and I appeared on the planet, the Dumont Television Network cancelled “Captain Video and his Video Rangers.” Captain Video, with the help of his Video Rangers, fought against the conspiracies and criminal elements of the late 1940s and early 1950s. Fifty-nine years later, I must respectfully disagree with my colleague John Pineau, who, in my opinion, is Colorado’s 21st-century incarnation of Captain Video. In particular, I disagree with John’s goal of creating a new generation of Video Rangers. Instead of appearing on live television, John and his apprentice rangers plan to use YouTube and other social media to post video depositions from civil cases on the Internet. This practice, which John claims is needed to bring “sunshine” about the legal world to the public, should be laid to rest alongside the likes of Al Hodge, who played Captain Video from 1950 to 1955 and who passed away in 1979.
I acknowledge the fact that technology—especially inexpensive cameras (I sometimes video record depositions with a camera I purchased on eBay for less than $50) and the ability to upload videos with a few key strokes and mouse clicks—physically allows anyone to post whatever he or she chooses on the Internet. I also am aware that the Internet is filled with videos of numerous legal proceedings, including those of Herman Goering, O. J. Simpson, Enron, and British Petroleum (BP). Still, I cannot believe that Judge Ito really thought it was a good idea to turn the O. J. Simpson case into a cable television reality show, nor can I comprehend anyone wanting to spend a great deal of time watching long dead Nazis pontificating about concentration camps. The only good thing I can say about the deposition of Tony Hayward is that it lead to my high school classmate replacing him as head of BP. The past is the past, and what some judge or tribunal allowed to be filmed and posted online cannot be removed from the archives of the Internet. I am concerned about the future as John says it should be.
I also acknowledge the very real possibility that, in the not too distant future, all court proceedings in Colorado, including every moment of every trial, will be digitally recorded, and anyone willing to pay the fee for a copy of the video record might then be able to post it online. I do not know whether this will pose copyright problems, but at present, anyone can buy a transcript of court proceedings, and I am not aware of any prohibition against posting public records, such as a trial transcript, on the Internet. There are no secret trials in America, and there should not be. The posting of pre-trial depositions, however, is another matter.
Not Lawyer’s Job to Retaliate
In a Denver Post article about you, John, and your Captain Video proclivities, there is a discussion about how you were so outraged by the way some defendants tried to use the power of a government connection to intimidate your client, that after you won a judgment for your client against these defendants, you posted on YouTube the deposition video of a witness saying it was okay to lie to the government. As a result of this posting, the witness and his company apparently got into a quagmire of potential legal trouble, and even endured student protests.
In my opinion, John, once you won the case and collected the judgment, your part in the matter should have been over. It is acceptable for us attorneys to feel outrage when arguing a cause to the trier of fact, but personal outrage, no matter how justified, should not allow attorneys to try to “stick it” to someone after a case, even if he, she, or it richly deserves it. The case is about the client, not us. We took an oath not to act out of malice or outrage. Going out of the way to try to embarrass a party or a witness, or to get him or her in trouble after a trial, is not okay. It is no problem for me if a client is irked and chooses to act on their outrage, as long as the client stays within the bounds of the law, but an attorney should refrain from pushing the matter once the cause is over.
Why Depositions Are Different
Even if there is no intent to try to expose a wrong or a perceived wrong, posting deposition videos online raises a host of thorny issues and problems. In depositions, the evidentiary rules are relaxed. Deponents often are asked questions that could be objected to at trial but, because the answer to the deposition question might lead to the discovery of admissible evidence, it is allowed during the deposition.
Defendants in motor vehicle accident cases, for example, routinely are asked about their driving histories, the discussions they might have had with their liability insurance carriers about the accident, any traffic citations they received as a result of the accident in question in the case, and possibly their criminal history. The fact that a defendant (1) had his driving privileges suspended for six months a decade before the accident; (2) was convicted of misdemeanor theft; and (3) spoke about the careless driving citation he received following the accident with his liability insurance carrier likely would not be discussed at trial due to a variety of evidentiary rules. In your universe, John, if your client did not get a good result in this case—or even if he did—it would be okay for you or the other Video Rangers to expose these non-admissible matters to the world, possibly causing grief to the 32-year-old defendant because his family, friends, and employer did not know he was convicted of petty thievery at the age of 20, or that he had his driver’s license suspended for drag racing when he was 22 years old.
Plaintiffs in injury cases routinely discuss their medical histories and, if a loss of consortium claim is involved, their sex lives. John, if you and your wife were rear-ended by a motorist on your way to the soon-to-be-opened Trader Joe’s in Boulder, and you filed a bodily injury suit as a result, would you and your wife want to see yourselves online testifying about (by way of a very fictional example): the sexually transmitted disease you contracted in law school, the three times during college you injured your back trying to ski moguls while intoxicated, and the thirty-seven sessions of marriage counseling the two of you had undergone before the motor vehicle accident? This is the universe you would be living in if depositions could be posted online.
An Ethical Slippery Slope
Still another issue in this developing quagmire of a debate is selective editing, which would be a major problem if deposition videos were posted online. In most depositions, I wager the attorney taking the deposition will find a few “golden nuggets” taken completely out of context to use at trial when questioning the deponent. If only those nuggets are posted online, doesn’t that paint a distorted picture of what the deponent actually had to say? Of course, if the goal is to make the deponent look bad anyway, then of course the new Video Rangers’ response is: “What’s the harm?” Well, the harm is very real. “Justice TV” could be an oxymoron in many cases.
John, I know you are not advocating taking the image of a deponent and, for example, putting it into an advertisement for bourbon, but if you post a video on your website of you making a deponent look foolish, aren’t you just appropriating the image of that person to further your law practice? By that reasoning, should the person be entitled to royalties for appearing in one of your home movies?
It seems that most of the courtroom clips we see on television involve high-profile criminal cases. It intuitively makes sense to anticipate that the parties to a criminal case might expect heightened public scrutiny of their situation as opposed to the parties in a routine civil case. After all, in a criminal case, the claim is that an individual violated the public law and order. In a civil case, the claim is often that one citizen tortuously or contractually caused damages to another citizen. I will guess that the average resident of Colorado Springs has no interest in a promissory note dispute between me and my neighbor, but that same person could very well be interested in a case where my child’s daycare provider has been charged with molesting my child and five other children.
I am not in favor of attorneys being a party to the posting of videos such as those that you mention, John—bank fraud, pollution, insurance bad faith, and so on. Attorneys have a different role in the legal system, and that role is not to be Alfred Hitchcock.
Trying to expand litigated cases into a worldwide arena beyond the courtroom makes no sense. It takes a private dispute that exists in a system in which those ultimately deciding the dispute are not allowed to use the Internet to decide the dispute, and it turns it into a public alley fight that could remain online in perpetuity. Please note, John, that not everybody has the ability or resources to skip the court system to arbitrate a dispute.
The posting of deposition videos online could well encourage attorneys to modify their behavior at a deposition. Hardball tactics, either to look tough or to try to prevent embarrassing information from being disclosed, might become the new norm. This is not at all in keeping with CRCP 30, which tries to limit attorneys to objecting only to questions calling for the disclosure of privileged information, and it certainly is not in keeping with many routine trial court orders that specifically tell attorneys not to engage in obstructionist tactics or boorish behavior during discovery.
I know, John, that you have been quoted as saying that social media is the way to “take the truth and make it a little more public,” but your idea about what “truth” should be posted online and why it should be posted online is not the same as mine. When a case is over, it should be put into storage and then forgotten. It ought not stay alive on YouTube, Facebook, your website, or anywhere else in cyberspace. Even if some horses have left the barn, a number of them can stay put. Unless you are ready to tell the world all of your darkest secrets, please take the idea of posting deposition videos online and lay it respectfully next to Al Hodge.
Rest in Peace.
 Lofholm, “Colorado Attorney Brings down the Hammer of Social Media Justice Via YouTube,” The Denver Post (May 22, 2013), www.denverpost.com/news/ci_23295396.
 The following is the Colorado Attorney Oath of Admission:
I do solemnly swear by the ever living God (or affirm) that: I will support the Constitution of the United States and the Constitution of the State of Colorado; I will maintain the respect due to Courts and Judicial Officers; I will employ only such means as are consistent with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado Rule of Professional Conduct.
 CRCP 30 and 26(b).
 See, e.g., CRE 411; CRS § 42-4-1713.
 CJI 1:10.
 Lofholm, supra note 1.