VIDEO SETTLEMENT DOCUMENTARIES Frederick S. Aumick, RPR(ret.), CLVS

VIDEO SETTLEMENT DOCUMENTARIES Frederick S. Aumick, RPR(ret.), CLVS Presented at TECH CON National Court Reporters Association Scottsdale, Arizona April 20, 2013

Page 2 of 9 A Video Settlement Documentary (VSD) is a highly effective video documentary specifically structured to present the most important facts about a case and the current status of all parties affected by the underlying event(s). It is produced in a documentary style similar to what is seen on 20/20 or a 60 Minutes segment on broadcast TV, with the exception that there is no on-screen interviewing talent. Instead, the cohesive thread is the off-screen narrator. Its purpose is to convey the most important facts about a case. It is a synopsis of what counsel intends to produce at trial. It can explore issues of liability, or damages, or both, and can be as detailed as is deemed necessary but always keeping in mind that you do not want to bore the viewer. It is produced with the expectation it will help the parties arrive at a settlement of the litigation, thereby eliminating the emotional trauma to the parties and reducing ongoing costs, and especially the costs of trial, for all parties. It is also not evidentiary. Under normal circumstances, it will never be played in a courtroom, but it is a very important part of counsel s presentation in a mediation or arbitration. Indeed, in many cases it is the entire presentation. Because the VSD is not evidence, you can use camera techniques you would not or should not use during a video deposition. As an example, we quite frequently use very tight head shots, focusing the viewer on the emotions being played out on the screen. Who uses a VSD? While there is no reason why a VSD won t work for both sides in the litigation, my experience has been it is primarily the plaintiffs who are more prone to request a production of a VSD. Similarly, it should be effective in all types of cases, including commercial cases, but that has not been my experience. This I m sure is related to the general nature of the law practice of our primary clients: more concentrated on personal injury, medical malpractice and products liability. As a consequence, this presentation about VSDs will focus on use by plaintiffs counsel. The most important benefit of the VSD: The VSD enables the decision makers to see the plaintiff s position in the case, without the filtering of defense attorneys. What I mean by that is primarily the insurance companies. Claims adjusters, claims managers, and high-level insurance company executives may not be aware of weaknesses in their case, or the true strength of the plaintiff s case. They may not even be aware of the full extent of damages. All of which will cause them to evaluate the case differently than if they had the proper data. Why? Defense counsel has not had good communication with his client. At what stage of litigation can the VSD be used? The VSD can be an effective tool at all stages of litigation, depending upon the type of case, from very early in the case, pre-suit, right up to literally the day before trial. An example of when it could be used very early: assume there are catastrophic injuries, such as, para or quadriplegia, mutilation, obvious brain damage, loss of limbs, etc., and there is a limited amount of coverage by the

Page 3 of 9 defendant. Plaintiff s counsel has asked for the policy limit, but it has not been tendered. Defense counsel may be asserting no liability or comparative negligence on the part of the plaintiff. A short VSD, incorporating very brief interviews of eyewitnesses, statements made at the scene to the investigating officer, whether or not they are subject to statutory privilege, and a brief review of medical records, plus a Day in the Life of the injured party in the hospital can be very persuasive to the carrier to tender the policy limits. If the insurance company does not, and ultimately there is a trial where the jury verdict is in excess of the policy limits, then the VSD can be a very persuasive piece of evidence in a bad-faith action. This is probably the only time that I can think of where a VSD can be shown during a trial in a courtroom. The reason is the defendant(s) usually will claim lack of knowledge of the true extent of the injuries, but a well-produced VSD will give ample reason for a jury to conclude the defendant insurer was well informed of the potential liability and exposure of their insured SOURCE MATERIALS USED IN A VSD: Many sources of material are available. I try to think of the case in a chronological order, so the first question that will come to my mind is: Is there broadcast media of the tragic event available? If not, there may be police or eyewitness video or photographs. We use video interviews or depositions of the parties, eye witnesses, before-and-after witnesses, family members, accident reconstruction experts, doctors; rehabilitation experts, and economists; and we incorporate animations, field footage we shoot, police photographs or videos (maybe even a video recording of the defendant under the influence of alcohol or drugs); hospital records, X-rays, MRI s and stenographic transcripts. And we create graphics to help tell the story. In more than one case, we have re-enacted the accident. In fact, we use anything you would expect to see in a 20/20 or 60 minutes style documentary. Quite often, through the interview process, we discover many facts about the case even the plaintiff s attorney was not aware of, and not uncommonly we have increased the value of the case by the additional facts we have uncovered. The steps we use in producing a VSD: If your client is taking video depositions early on in a serious case (value of $250,000 and above), this is a wonderful opportunity for you to discuss with him or her the benefit of a video settlement documentary. Set an appointment to discuss in detail the benefits of a VSD and how effective they can be. Meet with counsel to learn about the case. It is important that you listen carefully to your client s position in the case. Learn the facts counsel wants to emphasize and also those he or she wants to

Page 4 of 9 de-emphasize or keep away from entirely. (Something may seem insignificant to you, but its placement in the VSD may open up a can of worms that counsel would rather keep the lid on.) Give counsel a copy of the resource check-off list to make him or her aware of the materials that can be used. You and your client will be able to determine what resources are already available and what must be obtained. (A copy of my resource check sheet is included as an attachment in this handout.) Produce a to-do list with your client as to what video production should be done. Depending on the status of the case, these will include interviews of relevant people with respect to both liability and damages, videotaping upcoming depositions of the parties, including cross-noticing of taking the plaintiff s deposition by videotape. You may also have to re-create the accident. A day-in-the-life is an absolute necessity in preparation for a VSD. If you are lucky enough the get involved in a case early, periodic, progressive day-in-the-life (DITL) volumes should be produced. If the plaintiff goes on to recovery, however limited, and you didn t have an early DITL, your client has lost forever the opportunity to demonstrate the early and sometimes most tragic situations. When the plaintiff deteriorates, multiple DITLs show that deterioration, and this will enable physicians and other experts to make commentary about the plaintiff s progress or lack thereof. As a bare minimum, ALWAYS VIDEOTAPE the plaintiff(s) and some before and after witnesses. Make suggestions to your client about using demonstrative evidence during upcoming interviews or depositions, and especially treating physicians and/or experts in all fields. These include X-rays, medical illustrations, aerial photographs, animations, accident scene drawings, models. The more visual stimuli, the better. Complete the video production, and include field shots, or B rolls, in your list, such as, the exteriors of hospitals, emergency room entrances, the actual site of an accident, etc. A word about client interviews: The best interviews I ve worked with have been conducted by myself not because I m such a great interviewer, but because I get really involved in the case, and care about the people being interviewed in a different way than most attorneys I have worked with. I think the reason for that is because I am not an attorney. I get the basic facts, but then I start reaching into their heart: I ask questions that will elicit the emotions I am seeking. As just one example, when a spouse has died and I m interviewing the survivor, I ll inquire about their daily lives what

Page 5 of 9 activities they enjoyed together; what common interests they had; what trips they took and really enjoyed - how they were different what they most admired about their spouse, etc.. The goal is to get them to talk freely to me and not feel threatened, and it s all important background information for me. Then I ll ask about maybe the first time he or she got into the marital bed and their spouse wasn t there tell me about that night. How did you feel? Usually, they are crying already. If not, the second question: Were you crying? opens the floodgates. And then I just let them cry and talk. I don t say a word. Even if they stop saying anything. We just sit there in silence. And then they usually start talking again and it s all pure gold. What would most attorneys do? As soon as a person starts getting emotional, they call out, Cut. The attorney gets embarrassed, or he or she gets embarrassed for the client. I m not embarrassed and I too may be crying with them. But they ll talk to me and tell me such wonderful things about the love of their life who is no longer with them and how much they hurt. I view my roll at that point is to bring out as much deep emotion as I can. I am helping the client by demonstrating for the viewer the intensity of the experienced loss. My style is to have transcripts produced of the interviews. There are some people that can view the view and mark the edit spots without the transcript. I just can t. It costs my client more, but that s the way I work. Get copies of video and non-video depositions. Evaluate the material you have and write the script. (A portion of a sample script is included in the handout.) My style in writing the script is as follows: Although each script is different, I usually write in segments, and within each segment it progresses chronologically. o The first segment usually starts of with the catastrophic event or a lead-in to it. In one instance we had accident scene footage recorded by a private video company that responds to police radio calls. There may be local news footage that your client requested as soon as they got the case. In another instance, the law firm s investigator videotaped riding the Interstate and exiting where the accident took place. We use voice over to describe who was involved, where they were in the vehicle and then cut to a diagram of the accident scene and accident photographs. We ll use as much detail as the attorney wants in this segment. Sometimes liability is not an issue but we ll still start off with the tragic event as the beginning but maybe not in as much detail. o Describe what happened to the injured and whether they were airlifted or transported by ambulance we ll also insert

Page 6 of 9 pictures of the hospital where the injured or deceased were transported. If we have a video statement or deposition testimony of ER physicians, we may insert that here. o After the injured are stabilized., we then go back to before the accident happened and tell the story of the lives they lived how they met their spouse work, children, travels, challenges, etc. through their own interviews and people who know/knew them. o The next segment will cover recovery of those who were injured and what their current status is. o Interviews with their families tell how they are doing now and medical interviews and/or deposition excerpts tell the medical story. o We ll use video insert excerpts of a Day-In-The-Life over the interviews of the injured and the care givers. o Depending upon the complexity of the case and what the client wants included, there may be a summary of a life care plan and a statement by the economist in the case. o We use fade to and from black to signify the major segments. o At then end, I ll use what I consider to be the most emotional part of the documentary by either the injured party or a survivor, and then fade to black again. o If this is the end, we ll fade in and out of THE END. o Your client may want to be on camera and make a statement to those who will view the VSD. Those statements are usually of this nature: You have seen the devastation to the lives of my client(s) caused by your insured and the professional approach I have taken to this case in the presentation of this documentary. This case can be settled now for $X,XXX,XXX. If it does not settle, I assure you, this case will be presented to the jury with all the resources at my disposal and the same attention to detail as is demonstrated herein. Thank you, for your attention. o Fade to Black and in and out of THE END. It is important in the script to not dwell on one person too long. Cover the same general subject with multiple witnesses, but don t repeat specific details. Pick out the gems and move from person to person and let each give their own account on how mom, husband, sister is doing now. As one example, we had a gentleman whose wife was killed in an Avianca airline crash on approach to New York s JFK airport, and he was discussing what his life was like without her. He was a wealthy businessman from Columbia, and he described how for months he just couldn t get himself to go to his office and work. We also interviewed his housekeeper, and she, speaking through an interpreter, told us how she would come upon him just staring out a window into space and silently crying.

Page 7 of 9 Sometimes it may be necessary, especially in the case of a doctor, to prolong using one witness, but make it interesting by using appropriate sections of a Day in the Life to give the section life, or cut to highlighted sections of medical records, or even better if your client did produce medical illustrations for the doctor to use. It is imperative that you read every document and you know intimately what the case is about. You have to get very involved in the case in order to produce a good script. The person who used to do the basic script writing for me is the same as the voiceover person you ll hear as the narrator in the VSD. I would give him or show him all the source material we have, and he took the transcripts and the documents home and comes back in about a week with a rough script. In my early days of creating VSDs. I needed him to do the basic script production for me. Then he and I would meet, usually for a whole day on a weekend, and produce the final script. My strength was in my ability to analyze the script and re-write it, functioning more as an executive producer and finalizing the script. As time went on, my ability to assemble the basic script grew and I no longer needed his assistance in that area. For a person starting out in this area, I strongly suggest you find a broadcast journalism person to assist you with a script. it may well be worth the money you spend to get you off and running in the right direction. If you have never worked on a VSD before, I strongly suggest you find a person who has written scripts before to assist you. If you have been in this business for at least 3-5 years, your interaction with the script writer is critical. You will have an appreciation for what usually may be admissible evidence, and what is not important. Your interplay with this person is very important. They may be coming from a journalism background where they constantly want to try for sensationalism. You have to minimize that effort, because when you present the script to your client for approval, if you have held the sensationalism down, he won t have to tell you to delete it. Believe me, he will have enough of his or her own ideas about what to take out or add. Use a professional voice as the announcer through the whole piece, for the opening, segues, and possibly the closing. You can cover dull areas, such as, reading from a transcript, with the voice. You just can t show the transcript and let the viewer read it silently. Everyone doesn t read at the same speed. Use the voiceover for emphasis on certain points. Here it is also as important how something is said as much what is said. My best advise is DO NOT ALLOW COUNSEL TO DO THE VOICOVER. I can t emphasize that

Page 8 of 9 enough. A professional voice can make all the difference between a mediocre, boring piece and one that is outstanding. We have found even the most impressive lawyer in the courtroom is not able to read a script and give it the necessary inflections that are required. Present the script to your client for his or her approval before you start editing. This is very important. One plus: once approved, any changes thereafter enable you to bill for re-editing time. Edit. An experienced editor is invaluable. The two editors on my staff do an incredible job. They come to me with suggestions and alternative ways to do things, because they see how the script is unfolding, and while the script may read well, it may not look the same or have the feel you were trying to convey in the presentation and modifications are necessary. Present a copy to your client. In almost every case the client will request some re-editing. Discuss with your client when and where will the VSD be presented. If it will be presented at a mediation, some of my clients prefer to submit the VSD to the adversary up to two weeks before the scheduled mediation. The defense attorney at that point is duty bound to present it to his client. Similarly, counsel will usually submit a copy for the mediator to review prior to the mediation session. Others take the position they want to hit them cold with the VSD at the mediation. If presenting for the first time at mediation, my strong suggestion is that the tape or DVD be played on as large a screen as practicable, in a darkened room. THE DARKENED ROOM IS VERY IMPORTANT. There may be many facts the defense is seeing for the first time. the VSD, if we have done a good job, is very powerful and each person is affected by the presentation differently. the darkened room keeps the attention of every one on the screen. This minimizes each person looking at others to see their reactions and let s each individual person have their own experience. It is not uncommon for use to be told that when the lights were turned on and the window coverings rolled back, every one in the room was in a somber mood, and many had tears in their eyes. All the cases we work on are truly devastating to those injured and/or survivors. My job is to make others experience their loss. When the audience is truly moved by what I have produced, then I know I have done a good job. What does the VSD cost, and value does a case have to have to warrant doing a VSD? The VSD varies greatly in cost from as little as possibly 1,500 to 2,000 dollars to as much as $18-19,000, plus travel costs) depending on the number of people to interview, field production, anticipated editing time, etc. If, for example, a VSD is needed to get the carrier to tender the policy limits

Page 9 of 9 in a catastrophic injury case, where the available insurance is totally inadequate for the damages, the cost may be $1,500 to $2,500. You would need video or still shots of the person in the hospital, the vehicles, possibly one eye witness interview, interview of the plaintiff if possible, or a family member. You may be able to get this done in one, one-and-a-half days. My policy is to give the counsel a best guesstimate. But I also advise them I bill by my usual rates.