Bar News - August 19, 2015
Workers’ Compensation & Personal Injury: Day-in-the-Life Videos: A Useful Tool in Some Cases
By: Doug Grauel
So you just got your iPhone 6, and if Apple is airing commercials with footage shot by regular users, why can’t you shoot a day-in-the-life video in your case and transform it from an “everyday” injury claim into a tear-jerking damages home run?
How hard can it be, right? Actually, you may be on the right track, at least partially. Producers who make these types of videos for attorneys advise plaintiffs’ lawyers that it’s a good idea to begin shooting video footage early and often, to document injuries and their consequences from day one. But successfully going from “Scene 1, Take 1” to “That’s a wrap” takes some planning and, usually, some professional equipment.
First, attorneys should consider the case itself. Is this the kind of case where the damages are unusual or high enough to warrant a video? Keep in mind that the defense’s expectations will be raised if you include a day-in-the-life video. Unless the damages are likely substantial, or there is something about the injuries that has an outsized impact on daily activities, the case may not warrant a video.
If your client is going to testify “it hurts so bad I can’t even move!,” then a day-in-the-life video showing your client shuffling around the house doing chores is not going to be terribly moving to a flinty insurance adjuster. But if the injuries are especially severe, or if they will be difficult to demonstrate after time has passed (for example, because a major surgical procedure left relatively faint scars, but only after months or years of healing and rehabilitation), then a 5-10 minute video may convey a whole dimension of the case that still photos and witness testimony alone could not.
Next, consider your client. Some people are just not comfortable in front of a camera, and they will not want to do this no matter how much it might help the case. How hard you press the client and his or her family to do this, knowing that the process may be unwelcome, but the benefit may be huge, is a hard call. Involve the client from the outset. Explain what a day-in-the-life video is, what you have in mind, and why you think it might help. Also point out the pitfalls: count on shooting hours of video for minutes of final footage. This means working with a video team, and the legal team, for at least one full day. And the subject matter may be intrusive. If you have a client with self-care challenges, special handling will be required.
Day in the life videos are essentially documentary, so there will be limits to how much the entire finished product can be mapped out ahead of time; however, the difficult parts can probably be anticipated and made easier, and maybe even made possible, by planning ahead. Making sure the video producer is a good match for your client may make all the difference. Interview format, where the video only shows clips of the client answering questions that were posed off-camera can be most revealing, and offers a preview of what to expect of the client from the witness stand. But if the producer and client are not a good match, the “flow” of the client’s or witnesses’ answers may not work, and that may stand in the way of presenting information as effectively as possible.
Consider the goal of the video. Is it strictly a settlement tool – something you will show at mediation or send with a demand letter - or will it be used for trial? If it will be part of a mediation, consider sending the video a week or two in advance, so its impact will have been felt and mediation time can be spent trying to settle the case.
In a trial setting, it will be necessary to think about all kinds of things ahead of time: Will there be hearsay contained in the video? Will you have any authentication problems? Will your raw footage be discoverable? Does the other side have a right to be present when you shoot?
Discovery and Admissibility issues
Admissibility should be the same as for photographs: If the material presented is a fair representation of what it is offered to show, then it should be admissible. Line up the correct witnesses to confirm that what’s on the tape is what the injured party goes through, and all that’s left is a witness to say that the video in fact shows what happened on the day it was shot. Absent unfair prejudice, which is a potential objection common to any kind of evidence, filmed examples of what plaintiffs do are admissible.
As to discovery, expect the defense to argue that they should have been invited to the filming, that they should be entitled to all raw footage, storyboards, notes, and other materials related to the filming, and so on. A leading case, however, Cisarik v. Palos Community Hosp. (Ill. 1991), concluded that all of those things were protected by the attorney-client privilege.
Day-in-the-life videos can be expensive. Expect to spend a few thousand dollars, to as much as $10,000+ depending on the time required. But in the right case, a day-in-the-life video may allow you to convey details about your client’s injuries that cannot be captured as forcefully or clearly any other way.
Doug Grauel handles injury claims, workers’ compensation, and Social Security Disability cases. He can be reached by email.