A “Day-in-the-Life” Video Documentary
Objective videotape documentary of the activities of daily living of an injured
plaintiff is regularly accepted in courtrooms today. After all, videotape is
nothing more than a series of still pictures. If a picture is worth a thousand
words, then a videotape is worth a million. An injured or handicapped person
typically makes a poor witness on their own behalf. It is human nature to play
down one’s suffering when describing it to other people. Even a loving
caretaker will minimize the difficulties they have when describing the care of a
family member. They don’t want to sound self-serving or complaining. Beyond
verbal description, a videotape documentary can clearly and fairly portray a
plaintiff’s and their family’s altered lifestyles. “Day-in-the-life”
documentaries of all kinds of
injuries have consistently resulted in higher case values. It gives the
jury and the defense the opportunity to fully appreciate and understand the
routine obstacles the plaintiff deals with everyday. If you can make the jurors
understand the injury and its impact, they can intelligently place a value on
Being involved in the actual making of a “day-in-the-life” documentary puts you,
as the plaintiff’s attorney, right into their environment where you can begin to
understand the enormity of their injury. It will make you much more sensitive
to the range of the plaintiff’s damages and thus better equip you to present the
case at trial. In addition, when the defense counsel views the documentary
before trial, they can begin to better appreciate the extent of the plaintiff’s
damages, making it more difficult for them to argue the case and increase the
likelihood of an earlier settlement.
Sometimes, it can be hard to communicate damages. For example, say your
plaintiff is a horse trainer and has sustained injuries to his leg. Other than
a slight limp, he has no visible signs of disability. To the average observer,
the man HAS no disability. Yet, in fact, he can no longer perform his job.
Rather than making a “day-in- the-life” documentary of the plaintiff, you can present a
short factual video, depicting how a normal horse trainer does his job. The
plaintiff can narrate the tape to explain what is occurring and what parts of
the job he is no longer able to perform. That allows full communication with
the jury as to why a horse trainer needs a full range of leg motion to train
The first step is to find an experienced professional legal video producer.
There are enormous differences between shooting a deposition and putting
together quality, unimpeachable footage for the courtroom. Before bringing your
video producer into the picture, spend time with your injured client to
determine details of their functionality changes and difficulties. Exactly what
activities do you want to show and in what order? Prepare a “shot” list. It
saves time and money for the video producer to “edit in the camera” by getting
it on tape in exactly the sequence you want. Arrange for the video producer to
watch the activities before actually taping them so they can determine what
technical challenges they will face, such as a good camera setup location to
best capture the information on tape. If you have a lot of activities to cover,
you may even want the video producer to view the activities a day before taping
them. Consider the endurance limitations of your client. If it takes them a
grueling hour to get out of bed and get dressed in the morning, they may be too
tired to go right away to showing what it takes to get out of the house and into
a vehicle. The information can be recorded over more than one day or out of
sequence. This is not a misrepresentation, it is clear that this is being taped
for demonstrative purposes and is therefore “posed”, not “faked”, and this would
be explained to the jury. Advance preparation is also important to limit the
amount of “out takes” that will occur. No matter what you edit together for
your presentation tape, all the videotape that is used is required to be
available to the defense if requested. You
don’t want to have to explain why you used one particular take of an activity
over another in your presentation tape even if there was good reason.
Remember that recorded audio also has to be
available to the defense. First, determine whether you want it recorded at all
or not, then, be careful about what is recorded. You don’t want the defense to
find a piece of tape with someone saying, “Let’s do that again, I can make it
look better”, or have a great take with a physical therapist in the background
saying, “Boy, this guy oughta get ten million dollars for this injury!” You can
even incur hearsay objections because of any comments made on tape where the
person cannot be cross-examined.
A “day-in-the-life” documentary that is fair and objective is a formidable
method of presenting evidence. It is also difficult to defend against.
However, a poor one can be impeached and held inadmissible if it is not
objective and/or focuses too much on pain and suffering. When presented with a
plaintiff’s “day-in-the-life” documentary, you should view the tape more than
one time. If there is sound on the tape, pay attention to what is being said,
either in the background or by specific narration. Who wrote the narration?
What kind of direction was given to the video producer or the plaintiff? Then,
view the tape without sound to determine exactly what is being communicated.
Watch especially for odd camera angles, zoom-in shots and the length of time
focused on a particular activity or show of pain. Were any special enhancing
effects used? Lens filters? Colored gels? It is also possible (although
extremely deceitful) to alter the impact of an activity by running specific
footage forward and backward and making it appear that the injured is exerting
greater effort to accomplish a task. If you carefully examine the tape, without
sound, any grounds for objection should become obvious. If you have suspicions
of wrongdoing, ask to view all of the taped material. Also remember these
defense observation techniques when you are presented with a surreptitious film,
attempting to show that a plaintiff’s injuries are not as bad as claimed.
On occasion a “day-in-the-life” documentary has been attacked because of the
term “day-in-the-life” itself. The argument has been that these documentaries
do not represent an actual day in the life of an injured person, that in fact,
an entire day for that person is not totally filled with such difficulties. It
may be better for the plaintiff’s counsel to refer to the documentary as,
“activities of daily living”, of the plaintiff on a particular date or dates.”
It is recommended that your “day-in-the-life”
documentary be no longer than 30 minutes, and preferably just 15-20 minutes.
Experience has shown that a jury tends to lose interest in a
program of this kind
after 30 minutes.
A short program, prepared by a qualified video producer can cost from $800 to
$3,000. The work is usually charged on an hourly basis for taping and editing.
(Remember that pre-recording preparation you did to limit extraneous information
on tape? It pays off here too.)
Once you have completed your “day-in-the-life”
documentary, you may want to present it to the defense counsel or even
incorporate the footage into a video settlement documentary. For one thing, it
could increase the
likelihood of an earlier favorable settlement. For another, you will
want to address any objections they may raise. Based on those objections, you
may have to go back into editing to make some changes or there may have to be a
pretrial viewing by the judge to rule on the objections.
After you go through all this work, you want
your actual presentation to be as effective as possible. You must first
consider the timing of the presentation in court. With which witness will it be
the most effective? The doctor? The plaintiff? The caregiver? Make sure
everyone in the courtroom can easily see and hear (if applicable) the
videotape. You can’t miss if you position two large televisions for the jury
(one for each side of the jury box) one monitor/TV for the defense table and one
monitor/TV for the judge. You can stand by the jury, watch with them and
observe their reactions. Your video producer can usually provide you with this
equipment and an operator to make sure that all is in working order.
video documentary is extremely powerful and effective but, it can be an extreme
disaster if you attempt to create something that doesn’t exist by overstepping
objective boundaries, overemphasizing any points or attempting to taint the
information in any way. Make sure you are working with a professional certified
legal video producer to avoid pitfalls.