Forensic Video: An Overview

 Video is growing in its acceptance by the courts as a valuable communication tool that often expedites proceedings.  In fact, as more post “baby-boomers” that are used to fast paced images and stories become jurors, they will no longer be as content as their predecessors with a presentation that does not hold their attention.  You will want to present them with material that will rivet their attention and make them see and hear your side of the story.  As a storytelling tool, the use of video is a most effective case strategy. 

 

There are a number opportunities in which video can be used.  Used in support of motions in limine, video can enhance the plaintiff’s or defendant’s overall settlement posture.  In intellectual property cases, it can vividly exhibit and simplify complex technological issues.  Video can be an excellent presentation in opening statements, interim arguments and closing arguments.  While there has been some resistance to using video during these processes, it’s acceptance is now becoming increasingly common.  Of course videotaped depositions are the first method of using video that comes to mind.  If you want a jury to really know a witness, a picture is worth a thousand written words.  There is an increasing interest in the use of videotaped deposition summaries where several witnesses can be presented to a jury in a concise and elegant manner. 

 

When presenting your case in chief, a witness can be asked to explain or comment on video segments including computer-generated graphic information and deposition segments.  Video can be very effective when used for the impeachment of a witness and/or rehabilitation of an impeached witness.  When being impeached, it is difficult for a witness to deny contradictory testimony presented on video in front of a jury.  When rehabilitating a witness, it is difficult for a jury to ignore concordant testimony on video.  The court may even allow video evidence that was used throughout the trial to be viewed during jury deliberations.  In estate planning, a videotaped will can prove indispensable should the will be contested.

 

As the admission of legal video images as substantive evidence in court increases, so do the number and variety of ways in which a creative attorney can use this form of communication.

 

Opening Statements

 

While motion video currently continues to be met with resistance in opening statements, non-depositional demonstrative motion videos are becoming increasingly common. Using still-video images is more widely accepted and can be used, for example, to introduce the witnesses and parties in a case to a jury.  Still-video images can also effectively display charts, graphs, timelines, maps, imaged documents and freeze frames.  These materials typically serve as background when presented on poster boards or flip charts.  On video, they become the central focus of the opening statement.  Either way, you can provide the jury with a road map of the upcoming case, you can simplify complex issues regarding technology or machinery, you can make powerful, graphically-based statements and you can illustrate the principal case themes.

 

Depositions

 

In any type of case, videotaped depositions capture the verbal and nonverbal communication of a witness that speaks volumes.  In stenographically transcribed depositions, an effective witness is neutralized, an antagonistic attorney can be overlooked, signaling between a witness and their attorney will be missed, and the verbal and visual communication so important to a witness’s credibility is lost.

 

Don't think of a videotaped deposition merely as a way to capture the testimony of an unavailable witness.  In the comfort of a conference room, a witness can be more relaxed than in court.  When being videotaped, a witness quickly adjusts to and ignores the presence of a video camera.  A relaxed witness can think more clearly, handle questions more effectively and appear more credible.  A videotaped deposition can reduce the element of surprise.  Often, a witness’s downfall at trial is in cross-examination.  If this is going to occur, it is better to have it happen during a deposition than in court.  It gives you the opportunity to revise the strategy while there is still time to plan.

 

Of course, the expert witness is the ideal candidate for a videotaped deposition.  Their schedules can be very difficult to coordinate with court dates and the cost of having them appear in court can be prohibitive.  A videotaped deposition is an excellent way to preserve the testimony of an aging or ailing witness.  Videotape offers a safer environment for a fragile witness such as a child or a rape victim.  On videotape, it is easy for a jury to see details and demonstrations being described by a witness.  A videotaped deposition of a witness taken on location can help show exactly what happened that precipitated the case. 

 

For long videotaped depositions, consider using two video cameras.  That will provide a more natural view of the interaction between the attorneys and the witness.   It is also less tiresome for jurors to watch more than one person on camera.

 

Playing a video deposition is the functional equivalent of reading transcript excerpts.  While the original videotapes must remain unaltered, an edited version to be played in court can be created to enhance the presentation and streamline the proceedings. You will want to edit out the objections, colloquy, inappropriate silences, false starts, and unproductive leads.  With permission of the court, you may want to insert documents to which a witness is referring.  A rough edit, similar to a rough draft in writing a motion, can be created.  In general, the plaintiff and defense will have to agree in advance on the protocol for exchanging designations.  Typically, the plaintiff that is responsible for the video will submit the page and line designations that it intends to include on the presentation video.  The defense will then review and respond to the plaintiff’s designations with objections, if any, and by putting forth its own designations to be included.  The plaintiff will then review that and settle with defense what are or are not operative objections.  If necessary, this can be done with the assistance of the court. To prevent the plaintiff from scattering red herrings by including a large amount of designations that it does not really intend to use, defense should ask the court to order that within a reasonable amount of time prior to playing the video, the plaintiff make known;  that they do intend to play the video, which witnesses they intend to show in what order, and the exact designations that will be played.  The final version is a polished presentation.

 

If you have to present the testimony of an unavailable witness, a witness that you don’t want to present live or, a witness whose testimony was not videotaped, consider presenting the designations of their transcript via on-screen character generator or on-screen highlighting with or without voice-over reading.    This is particularly effective if you are already using video as part of your case strategy.  You can maintain consistency and keep the jury’s attention.

 

Closing Arguments

 

With room to argue, video technology provides an especially powerful means for presenting graphics, charts, animations, and full-motion video in an integrated presentation.  Disparate elements can be woven together and presented in a persuasive argument.  You can re-describe everything that has been covered or, better yet, you can replay video within the context of your closing remarks.  It will be harder for a jury to forget important issues, witnesses and information that are shown and emphasized to them again in a video presentation.

 

Day-in-the-Life Documentaries

 

Videotape in the courtroom has been dominated by personal injury cases.  Individuals who have learned to live with devastating handicaps tend to minimize their predicament when asked “to tell their story”.  As a result they can be “bad witnesses” on their own behalf.  A documentary that fairly, objectively and accurately portrays a plaintiff’s altered lifestyle, lets the injury and its effects speak for itself.

 

The admissibility and credibility of this form of evidence has been attacked because of the term “day-in-the-life”.  The argument has been, that showing a handicapped person struggling with transportation and personal care does not constitute a “day-in-the-life” of that person.  That in fact, an entire day for that person is not totally filled with such difficulties.  It may be better not to give the documentary a specific title at all when getting it admitted as evidence.  You can simply call it; a videotape of the plaintiff on such and such a date.  For purposes of discussion though, the common term “day-in-the-life”  will be used.

 

It is not practical for a jury to spend time in a plaintiff’s own environment, observing how routine obstacles become insurmountable barriers to a handicapped individual.  Many judges have held that a video documentary depicting the plaintiff’s consequential damages as the result of an injury is the best form of evidence the jury has to evaluate losses.  If you can make jurors understand the injury and its impact, they can intelligently place a value on the case.  A “day-in-the-life” video should honestly and accurately portray how a plaintiff’s routine and normal living have been altered as a result of the handicap.

 

Being involved in the actual making of a “day-in-the-life” video of an injured plaintiff can be very beneficial.  It puts you right into the plaintiff’s environment where you can begin to understand the enormity of their injury.  You become sensitive to the range of the plaintiff’s damages and thus are better equipped to present the case at trial.  In addition, when the defense counsel views the documentary before trial, it will also appreciate the extent of the plaintiff’s damages, making it more difficult to argue the case and increase the likelihood of an earlier settlement.

 

Nearly any type of injury is suitable for a “day-in-the-life” documentary.  It is difficult to imagine that it could take a stroke victim 10 minutes to remove one sock or what it would be like to put on a prosthesis every morning where there had once been a leg.  It is no longer difficult to imagine when it is captured and viewed on videotape.  Carrying it one step further, it is hard for the care-taking spouse or parents of an injured plaintiff to talk about their loss and difficulties without sounding self-serving or feeling guilty about complaining.  These struggles can also be shown on videotape without the spouse or parent feeling like they are complaining about their predicament.

 

“Day-in-the-life” documentaries of all kinds of injuries have consistently resulted in higher case values since they give the jury and defense the opportunity to fully appreciate and understand what the plaintiff has to live with.

 

In more subtle cases, it can be hard to communicate damages.  For example, the 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,  you can present a short program 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 as to why a trainer needs a full range of leg motion in order to train a horse.

 

A “day-in-the-life” documentary that is fair, objective and accurate is a formidable method of presenting evidence and is difficult to defend against.  That is why so many cases in which they are used result in settlement prior to trial.  However, a poor “day-in-the-life” documentary can also be used against you by defense counsel.  It can be impeached if it does not do an accurate job showing that the injured person’s life has been substantially affected.  If it focuses too much on the pain and suffering of the plaintiff it can be held inadmissible.

 

If you are defense counsel, once you understand that this documentary type of evidence can be helpful to your case or impeachable, it is less intimidating.  It is not wise for you to attack the video on the grounds that it is too powerfully persuasive for the jury to view.  Protesting the evidence on the grounds that plaintiff’s counsel is doing the job effectively is ill-founded.  You need to have a legal reason for attacking the admissibility or credibility of the video.

 

When presented with a plaintiff’s “day-in-the-life” documentary, you should view the videotape more than one time.  Then, view the tape without sound to determine exactly what is being communicated.  You need to watch out especially for odd camera angles, awkwardness of motion, and length of time focused on a particular activity or show of pain.  Also be aware that it is possible to alter the impact of an activity by placing action scenes out of sequence.  For example, running specific footage forward and backward can make it appear that the injured is exerting greater effort to accomplish a task than is really necessary.   If you carefully examine the tape, without sound, any grounds for objection should become obvious.

 

Voice-over narration on a “day-in-the-life” documentary can sometimes be impeached through effective cross-examination.  It needs to be determined whether the narrator’s words arose from prompting by the plaintiff’s attorney or coaching by someone else.  Was there a script written for the narration?  Sometimes it is better to let the documentary speak for itself with no narration.

 

If you want the video evidence to stand untarnished and undiminished, the “day-in-the-life” documentary must be produced with total objectivity and accuracy.  Any attempt to overstep boundaries, overemphasize a point, or otherwise taint the evidence will be exposed.

 

Also be aware that defense can use surreptitious films of plaintiffs, showing that injuries are not as bad as claimed.

 

Video Settlement Brochures

 

A Video Settlement Brochure is a concise summation of a case prepared for insurance adjusters and opposing counsel.  It is not restricted by evidentiary limitations found at trial.  A Video Settlement Brochure usually resembles a television-news-magazine story by interweaving a narrative with;  interviews of the plaintiff, the plaintiff’s family members, witnesses, and experts;   excerpts from a “day-in-the-life” documentary; documents, charts, graphs, and animations;  and personal mementos provided by the plaintiff such as home videos, photographs, and awards.  A well-written and well-produced Video Settlement Brochure creates a sensitive profile of an injured client and their family. The presentation usually includes your opening and closing statements which allows the other side to evaluate you as a litigator and communicator.

 

Videotaped Wills

 

To be valid, a will must be executed pursuant to the laws of the state where it is executed.  A video taped will is not a substitute for a valid will.  However, it can curtail contests by unhappy heirs.  It gives the testator the opportunity to explain the details of the family situation. A video taped will can also show that the testator could think and express an orderly desire as to the disposition of the property.  All of this is seen to be executed without undue influence, coercion or duress. A carefully prepared videotaped will that records the entire will execution procedure, visually and audibly, may prove indispensable should the will be contested. 

 

Summation

 

There are innumerable ways you, the creative attorney, can use video to your benefit.  Careful selection of a legal videographer can bring you and your client great returns. 

 

You need a legal videographer who:

 

x    Provides high quality professional equipment for obtaining and editing video.

x    Guides you through the process of preparing and using videotape to your best advantage in court.

x    Can interpret your ideas and produce effective unimpeachable results.

x    Knows how to creates the subtle aesthetic images that will sway a jury to your side.

x    Displays professional demeanor.

x    Has attained certification by a nationally recognized legal videography organization.

 

Just as the proper preparation of your witness and your case is in your control, so is the selection of your videographer.  Don’t place that control in the hands of your opponent.

 

A Certified Legal Video Specialist is your best choice!