PREPARING THE CASE FOR DVD

DEPOSITIONS

Preparation starts at the beginning. If you are planning on creating a DVD, or even thinking you might, you must capture moments in video (preferably digitally). As you plan discovery, plan to have depositions videotaped.

• Do not be afraid to videotape defense experts or witnesses. It is amazing what you will memorialize on tape to watch later and use to make your case.

• Be sure to video your own experts since they will be very effective in explaining your client’s injury or the defendant’s liability.

• Videotape your witnesses, including before and after witnesses.

• And finally, videotape officers, paramedics and other officials and be sure to have them attend in uniform.
The cost of videotaping a one-hour deposition varies but often is around $250. This is in addition to the court reporter, and any expert fees. But the effort is only one part of a bigger end. Consider that many videographers’ charges include the setting up and bringing digital equipment to the deposition.

Three considerations:

• Have the videographers arrive early enough to set up, especially when you are taking a defense expert’s deposition and paying a fee;

• Try to schedule multiple depositions at one set up;

• Always hold any demonstrative evidence up for the camera to see;

• And be sure to use a digital video camera.

Since you will be on video, be sure to specifically prepare the questions and plan the sequencing of information you wish to elicit. Court reporting technology like Livenote allows for the immediate flagging of portions of a deposition and can be useful to bookmark “golden nuggets” that come out during the deposition. Do not let defense counsel rattle you; maintain your composure. This is your show, literally.

In many jurisdictions, and under the Federal Rules, videotaping depositions is a matter of right. Check local rules to see if you are required to give notice to opposing party (see FRCP 30).1

EXPERTS

Opposing experts do not like to be videotaped. It is easier to push a deception in a transcript than it is on video. No doubt the expert will have moments, many of them, when she looks impenetrable. But that is how they will look at trial. You can capitalize on the moments of vulnerability. Remember the whole videotape will not be used in the final product, just golden nuggets from it.
The defense expert has probably written a report that, if believed, requires

that most of what plaintiff’s experts have said be completely wrong. A video deposition will help to reveal the error in that thinking. Using the simple approaches that work look great on video. Getting the expert to admit she has not reviewed or been provided with a complete file or specific information is powerful. Typically the expert will attempt to dismiss the unreviewed information as unimportant and those attempts look better on video then on
paper.

You should videotape your own expert. Insurance adjusters are typically told about plaintiff’s experts in letters from defense counsel. Now they can see them on the big screen. Let the adjuster assess the impact of the expert. Sending the videotape to defense counsel with a second copy and a letter directing that it be sent to the insurance company sends a message. The cost of the extra videotape is nominal. Sending it says “here, look at my case for yourself.”
Another reason to videotape your own expert is to tempt the defense

lawyer to drone on with annoying questions. If, at trial, the defense attempts to

use the deposition to discredit plaintiff’s expert, taking the opportunity to let the jury view the entire deposition, regardless of length, and hearing the droning defense lawyer is almost comical. The video deposition of plaintiff’s expert will also give video to the presentation of plaintiff’s case in the DVD. This is a vast improvement over using voiceovers while showing a deposition transcript or report.

WITNESSES

Do not be afraid to videotape defense or eye witnesses. Again the golden nugget you may miss is worth more than the cost of video. Witnesses for the defense are not professional witnesses, like experts, and can reveal facial expressions and tonal qualities that do not make it into the written transcript. These are hugely powerful for the final compilation.
Witnesses are not familiar with being asked questions under oath, let

alone, while being videotaped. Capitalize on their vulnerability. The truth comes

out nicely when a witness is honest, deceit doesn’t.

OFFICIALS

Having a uniformed police officer videotaped is huge. In cases where there are multiple officers, each one appearing in the final compilation will lend a great deal of impact to the viewer. Police officers tend to be very rigid on videotape but that plays out perfectly for our purposes. Let their stoic, skeptical personality radiate. This, in turn, can come across to a viewer like a very independent opinion. Do not miss the opportunity.

Similarly, paramedics should be deposed in uniform. This lends credibility to the level of their knowledge and experience in such matters and builds confidence in what they say.

MORE IS MORE

Never think that you have too much video or that you have videotaped enough witnesses. Again, when the camera is not on and a golden nugget occurs, you'll wish you had the camera running.

You may have a lot of material when you begin compiling the presentation according to your case theme as it has developed, but, as they say, you can always cut more hair off, but you can’t glue it back on. So have more than enough. Know that you will not use the vast majority of what you have. And know that a lot of work must go into edit and finding the many golden nuggets you found along the way.

BE CREATIVE

Video depositions are essential to the final product. But do not stop there. What else is there? Admissible at trial or not, can it help explain damages or liability, or, dare we mention, sympathy? Crash photos, coroner reports and photos, pre-injury awards, medical records and reports are some ideas. The use of B-roll: the hospital entrance, the wreck, the path of travel, anything that makes the message more compelling. The producer should be able to conduct additional interviews of people not deposed, or overlooked by the defense, and capture powerful Day-In-The-Life video, among other things.

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Read Part 4 of Enhancing Case Value with Depositions next week.

Using Video to Enhance Case Value- Part 2.

DECIDING IF YOUR CASE IS RIGHT FOR DVD PREPARATION

Before you ever contact a digital media production company, you must conduct a thorough investigation of the case. It is both a waste of a client’s money and the attorney’s time to invest is such a project without having made the appropriate considerations, not to mention the embarrassment of presenting your project if it is inaccurate or premature.

One way to approach the decision is to ask yourself if investing $5,000 to $10,000, or more, is likely to increase the settlement value by several times that amount. If the answer is “yes” then you are doing a service to your client and the case to move forward. Likewise if you believe the value of the case can increase by $100,000 to several hundred thousand, the investment is very modest.
Some cases are very suited to digital production and the decision is easy. Other times cases are not so well suited but can still be candidates for production. An otherwise mediocre case can get a better then mediocre result if presented dynamically. If the liability is weak, digital media can assist in clarifying the defendant’s presumptions and misconceptions. If damages are questionable, digital media is an opportunity to present your client and the physicians. Ultimately the production should explain the case clearly.

As trials become more expensive and uncertain, plaintiffs should be willing to consider utilizing ADR and specifically mediation. Defendants are also facing uncertain trials and are willing to sit through a presentation. The best time, ideally, would be before litigation costs mount. However, reality is that cases resolve much closer to trial and hence the timing of mediation usually coincides with the impending trial. Preparing for the mediation with a DVD presentation can be an excellent trial preparation effort if done properly. Additionally, depending on the content of the production, parts of the production can be used for trial depending on the jurisdiction.

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Read More next week as this series continues on Enhancing Case Value with DVD and VIdeo

Meanwhile I thought it would be timely to run a series on that issue in my blog.  So this week we will take a look at how DVD and video can enhance the value of your case and how your attorney can make that happen.  Here is part one of an article I c-wrote with Dave Fulton, a professional videographer:

 ENHANCING VALUE BY
USING DVD MEDIA IN A TBI CASE (part 1)

By Tim Titolo, Esq. and Dave Fulton

INTRODUCTION

The use of media at trial is certainly more the norm than the exception. In fact, jury surveys indicate that plaintiff’s use of media does not offend, as one might think, or make jurors believe plaintiff’s attorney is being excessive. Rather jurors expect the use of technology and view it as responsible when used by either
side.

The same can be said for preempting the need for a trial altogether by putting together the strongest possible presentation for ADR and mediation, with the goal of prompting a settlement.
What does a video bring to the table? Simply, there is no other medium that will effectively communicate the non-economic damages of your case like the emotional sledgehammer of a well-produced DVD documentary. While the rule of thumb for evaluating a case may be a multiple of 3.5 of the economic damages, a documentary can boost this value as much as tenfold or more by clearly communicating the contrast in the plaintiff’s life. By tapping into the non- economic damages with a thoughtful DVD documentary, you will find yourself leaping closer to recovering the elusive full value of your TBI cases.

Remember, at ADR the goal is not to bring the adjuster to tears, but to convince the adjuster that you can bring a jury to tears. The use of video is your best opportunity to accomplish this.
Videotape has traditionally been the media of choice in presenting brochures or Day-In-The-Life. Today, however, DVD is becoming widely used. A few years ago, one ran into compatibility issues with CD versus DVD and CD-R, DVD-R versus CD-RW and DVD-RW. Even when a disc was used to record, playback became an issue as some formats work on computers and others on home DVD players. The maze certainly brought many would-be users back to the

safety of traditional videotape, along with its fast-forward and rewind delays and snafus.
The TBI case, complex by nature, is conducive to presentation by DVD at trial and mediation (or other ADR). This article attempts to unravel the mystery of using DVD. Additionally, we will offer simple solutions and methods for producing the TBI case DVD. Rather then focusing on admissibility issues at trial, we will focus on the actual aforethought that might accompany a production for Mediation. The effort will assist you significantly for trial. Finally, we will explore how to make damages more compelling with digital media.

FORMATS AND TECHNOLOGY

For years, videotape came in every imaginable shape and size – BetaMax, BetaCam, U-Matic ¾”, 1-inch, BetaCamSP, VHS, VHS-C, SVHS, 8mm, Hi8, Digital8 – and that’s just the tip of the iceberg.
The next step in the digital revolution was CD-ROMs. While this storage format was simple enough, the confusion arose when a dozen or more video file formats started competing, led by MPG, AVI, and MOV. Each required its own player application on the computer to replay the file.
Then DVD started to catch on. It provided far superior audio (better than

an audio CD) and video. A demand was created to burn small quantities of the discs, so the manufacturers went into overdrive as they smelled the profits JVC had reaped on the VHS format. The requirements of the file system of the DVD was the same throughout, but the nature of the actual storage disk characteristics changed. We had DVD-R, DVD+R, DVD-RAM, DVD-ROM, plus the “RW” versions. Even the nerdish of techies were running into the streets screaming.
Sadly, it’s not over, not by a long shot. With the advent of High Definition, (HD-DVD) formats of Blu-Ray and AOD (Advanced Optical Disk) we will all soon have a whole new vocabulary of alphabet soup on our hands.

Here is all you need to know about DVD formats:

1) Use DVD-R for everything. The disks are only about fifty cents each and it’s the most universal format around. You should find that it plays back on just about any tabletop player or computer drive.

2) Ignore HD-DVD formats for the time being. Honestly, if you want higher quality, just invest in a DVD player that “upconverts” to a component, HDMI or DVI output. The picture from a contemporary store-bought DVD disk is beautiful on a high-def TV with one of these players. Let the dust settle for a couple of years before you take the plunge in this new format.

DECIDING IF YOUR CASE IS RIGHT FOR DVD PREPARATION

Before you ever contact a digital media production company, you must conduct a thorough investigation of the case. It is both a waste of a client’s money and the attorney’s time to invest is such a project without having made the appropriate considerations, not to mention the embarrassment of presenting your project if it is inaccurate or premature.

One way to approach the decision is to ask yourself if investing $5,000 to $10,000, or more, is likely to increase the settlement value by several times that amount. If the answer is “yes” then you are doing a service to your client and the case to move forward. Likewise if you believe the value of the case can increase by $100,000 to several hundred thousand, the investment is very modest.
Some cases are very suited to digital production and the decision is easy. Other times cases are not so well suited but can still be candidates for production. An otherwise mediocre case can get a better then mediocre result if presented dynamically. If the liability is weak, digital media can assist in clarifying the defendant’s presumptions and misconceptions. If damages are questionable, digital media is an opportunity to present your client and the physicians. Ultimately the production should explain the case clearly.

As trials become more expensive and uncertain, plaintiffs should be willing to consider utilizing ADR and specifically mediation. Defendants are also facing uncertain trials and are willing to sit through a presentation. The best time, ideally, would be before litigation costs mount. However, reality is that cases resolve much closer to trial and hence the timing of mediation usually coincides with the impending trial. Preparing for the mediation with a DVD presentation can be an excellent trial preparation effort if done properly. Additionally, depending on the content of the production, parts of the production can be used for trial depending on the jurisdiction.

____________________________________________________________________________

Read more in Part 2 next week.

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