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 the case.

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 horses.

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.

 A “day-in-the-life” 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.