Courtroom presentation: Do you want to run the machine?

I'm very stingy with my clients' money but one place I encourage them to splurge is to have someone running the projector, elmo, powerpoint, whathaveyou.
If you're not already comfortable with the gear and software, the wrong place to work that out is in front of the jury.
They might forgive your fumbling. (Doesn't that sentence just make you feel bad?) But why ask it of them?
Someone has to be so slick with the presentation technic that not only can they push the right button at the right time, they can troubleshoot on the spot if the right button doesn't work.
And have a backup plan if that whole system doesn't work. Have a way to make your point if electronics fail you. For inspiration about backup plans, see the movie "Heist." This will help your law career.

Settlement Video series: The Story

Settlement video, which I call "Scare the Insurance Company video", will have a story that sticks with the viewer.
Notice I didn't say it should have one. It will have one. The audience will make up something to connect everything you show them.
Your and my job is to make sure it's the story you choose.
This is art, so the only rules are the givens of human perception and thinking. But one good starting place is "A good, worthy, likable person had a great life. Then the awful thing happened that wasn't their fault. Now they suffer."
This might be exactly the story you tell the jury, but settlement video lets you tell it in the most poignant way, unshackled from the rules of evidence.

Settlement Video series: Start with the result

What do you hope happens when the defense sees your video?
I tend to assume my client wants the other side to write a big check.
But sometimes they have something more tactical in mind.
One brilliant client wanted to maneuver the defense into putting certain documents into evidence. So part of what he wanted from me was a video that included a subtle plea not to be thrown into the briar patch of fighting those documents. Worked like a charm.
I'm not that smart but I've learned to ask my smart clients exactly what they want to achieve.
So picture what happens when the defense puts your dvd into their player or when the mediator pops open his laptop and starts the video you offered. Work backwards from that.

Settlement video series: Family photos, look at all of them

Yes, those shorts make you look fat, but the photo shows you at bat, on healthy legs, surrounded by the company softball team. So we're going to consider using the photo for your settlement video.
Or, this is a boring photo, the color balance is bad, and the background is distracting. Photoshop is practically second chair for you on this one. In ninety seconds I can make this a compelling piece of evidence. And this isn't sailing close to the wind. It's just making the facts clear to the viewer.

These, writ small, are the reason attorneys need to have their litigation media producer see all the available family photos, all the home movies, and choose what's useful to the case.
Media illiteracy and confirmation bias keep the lay viewer from making good decisions about family photos. That's where a good producer earns their keep.

Settlement Video series: The raw materials

Your plaintiff lives in a media-saturated world and a settlement video is a powerful digestive enzyme for turning those media bits into support for your case.

One common through-line for a case is that Before, the plaintiff was happy, healthy, beloved, productive, then, undeservedly, the Injury happened. Now their good life is gone; everything from now on is After.

So you need to show Before.

Before, they went to weddings, looking their best. They played softball and got certificates for Best Volunteer. None of this has to be something that the Rules of Evidence would let you put an exhibit sticker on. It's just the accepted view of everyone's Before. In fact, sometimes it's better to let the audience -- the jury, the defense -- fill in the gaps.
You take family photos and video, newspaper articles, awards, diplomas, and show a life worth living and a valued community and family member. Everyone has unflattering photos. Those aren't part of the settlement narrative of Before. Friends and family tell us onscreen about Before. (Getting a good recording of their impressions is a very difficult process that needs to be invisible to the audience. It's taken me decades to learn how to do this.)

The other two elements in this through-line are the Injury and After.

Media of the Injury may be sparse but make sure you collect it all. Medical images, family media, press, objects associated with the Injury. Did they keep their cast, signed by everyone who wishes the plaintiff well? Anything visible that is associated with the Injury is raw material.

And After.
You'll discover a lot of After media and you can create more, exactly in the form needed. This is where I'm asked to record a clear look at the plaintiff's life. Often it's simple and heartrending. They can't walk or speak clearly or go to the bathroom. They're scarred or mis-aligned. Their food is unpalatable goo, pushed into a shocking hole in their stomach.

Occasionally there are invisible deficits like brain injuries. Later in this series I'll have more to say about how to present these, but one approach is apophastic. Friends tell us onscreen what the plaintiff could do before and can't do now.

Your theory of the case, precedents, your training and sympathies, all that is invisible. Luckily, you have the visible raw materials of existing media, objects, and media that you create.

Settlement Video series: When to start planning for it

Simple, just before the initial interview with a potential client.
I missed a chance to save my client thousands and get some irresistible footage because they let family members go back to Asia without getting them on tape.
Several months earlier, another client had me shoot a second look at their plaintiff in rehab and I caught some crucial evidence of progress. It changed her advocacy theory.
Still another client used video, that he'd ordered prospectively, in a discovery dep where photos just wouldn't have made his point.
Make your media case plan a natural part of your intake interview. Maybe the busy litigator doesn't have to ask about family photos and home video. Your assistant or your summer intern could go over that. But someone needs to tell the plaintiff to hang on to photos, don't erase those memory cards, don't let the basement flood the boxes of wedding photos where the plaintiff looks winsome and healthy, don't let the local network affiliate lose the footage of the wreck.
It's going to be a while before discovery deps; maybe you want to get fresh recollections, with fresh emotions, on tape.

On my other website, Modern-Media.com, look at the outline for a media case plan. (Yes, I have another website. I hope you don't feel that somehow cheapens what we're sharing here.)
Modern Media: Media Case Plan

The media case plan covers the gamut of litigation media, but is perfectly on point for settlement video.
It's never too early to plan, though I would swear on a more-likely-than-not basis, that it can sometimes be too late.

Settlement Video series: When to use it

My clients have used my work in several ways during pre-trial, most often profitably. (I've been lucky to work with bright, skilled attorneys.)
You have a good case but you're not getting any movement out of the defense. Several times client attorneys have said they're not even getting responses to plaintiff offers. A perfect time to send them a scary video. See how lovable the plaintiff is on video, how credible, how deserving they seem? Perhaps you didn't consider this factor, Mr. Defense, Esq.

Or, you have some kind of settlement event coming up -- a deadline, a settlement conference, mediation, or something to hang a press release on. Might be just the moment to unsettle the defense and make them consider the strength of your case.

Or, something new has come to light. It doesn't warrant re-opening discovery but you want the defense to consider it. If you send them video, I promise they'll watch it.

Next: When to start planning for settlement video.

Video Deposition Tip: Listen to your recorded voice

I promise you'll be surprised or your money back.
Unless you're experienced with recording your voice, playback your video dep through speakers. This will be an ear-opener.
You may find you love the sound of your voice, rich, clear, charming, credible.
Or not.
In any case, it will be different from the combination of room reflection, direct bone conduction through your skull, and self-deception you've been living with.
Speaking of self-deception, ask around. And not just your assistant and that unctuous associate who hopes to make partner. Ask me, for instance. I know it's your first time; I'll be gentle.

Try to listen with a jury's ears, through speakers like the courtroom's.

Are the words clear?

Is there time for the listener to absorb what you're saying?
Recorded speech should be a little slower, generally, than live. Listeners are missing some of the cues they would get from watching you speak, so give them a break. The poor court reporter can soak it up as fast as you can spit it out, but the jury? No.

Is there life in your voice? The written record doesn't need inflection or pacing or dynamic range. Listeners do.

How about your actual voice tone? Microphones and speakers change your voice. You hear all your bass notes most efficiently from inside your head. Is the jury getting that wonderful version, too?

Hope and faith are crucial in love and religion. For litigation media, you're going to need proof.

Finding the clip using barcodes

More detail about this in later posts, but here's a great aid for people who like a little tech flexibility in the courtroom but don't want to search, rewind, apologize, fast forward, and generally make the jury feel sorry for you.
Any digital evidence can be cataloged and assigned a barcode. You get a notebook with all your possible bits of evidence --photos; video deposition clips; documents -- each bit with a barcode next to it.
When you're ready to project that bit, wave a little handheld scanner over the barcode and the bit is instantly projected/played back.
A good amount of preparation and some expense goes into this stage magic, but many litigators rely on it for maximum flexibility and instant recall.

It's another part of drawing a cognitive though-line for the jury to follow, without the distracting intrusions of fumbling for files.

Next, the recent revolution in randomly accessible video depositions.

Get comfortable with the playback, or else

You have a shot of the plaintiff suffering, trying to be stoic, but failing. It will make your case.
You set it up with some irresistible figurative speech. The jury is hungry to suffer with your client.
You push the button and some color bars and 1000hz tone hits the jury.
You look down and you see you're not wearing any pants and the courtroom is flooding with a kind of Croatian liqueur that smells like sweat.
You wake up, vowing never to eat Margie's hot fudge before bed again.

Do you also vow to practice with your media presentation?

You should be comfortable enough to do a stellar job if everything works and an adequate job if it doesn't.

Presenting media in a courtroom is not a genetic trait. Everyone has to learn it. Even if you do well on standardized tests (that's how you got here, right?), you need to have someone who can run the equipment. Maybe that's you, maybe that's your second chair, maybe that's your hired help. Me, say.

Knowing that the video will play smoothly, look good on screen, stop and start when it needs to, this will let you relax and focus on being charismatic.

Litigation Media: How will they see it?

You have some evidence or an argument that will benefit from video or photos.
Picture the other side or the jury seeing it under the most advantageous conditions.

Now make sure that's how they see it.

If it's for a settlement conference, will you play it on your laptop while everyone watches? Will you project it? Will you send it ahead of time with the brochure of documents? Will it work in their equipment?
If it's for trial, is the courtroom better served with a big projection screen or a scattering of monitors, one or two for the jury, one for counsel, one up on the bench to make the judge feel special? If there's sound, how will that be played?
Will your witness talk during the video?
Do you want to play a part at a time? Pause on a particular frame and talk about it?
Is it easy to replay a particular part you may want to return to? (Never make your audience wait while you rewind.)
Are you comfortable running the A/V equipment while the jury watches? Would you rather have help? With or without help, did you rehearse? Did you rehearse again?

If the judge rules parts of it in and parts out, are you ready to play it when you want, with his edits?

More show business: What happens to the playback equipment before and after the presentation? Will you break to take it away? Leave a freeze frame on the projector while the case continues?

Q: Did you rehearse?
Mr. Defense: Asked and answered. Move on, counselor.
Q: You may answer, if you know.

Video Deposition Tip: Where to look while answering

If you haven't prepped your witness with on-camera practice, shame on you. Oh, did that slip out? Sorry.
Okay, if, for some lame reason, you can't do a camera test and practice to see how your witness will look onscreen, remember the rule of thumb: The more full-face you see them onscreen, the easier it is for the jury/audience to identify with them. You sit close to the camera so when they look at you, the camera sees most of their face. An exception might be an extreme difference in how they look from various angles. If they have off-putting scars on one side, for instance. Use your judgment.

If you don't know how they'll look, then tell them to look at you when they're answering. Again, you'll be sitting close to the camera.
Some practiced witnesses can look into the camera convincingly. Some.
Some people can get away with looking back and forth between camera and questioner. Again, use your judgment. It's easy to watch them and see what you hope you'll see. Force yourself to see what's really there.

Don't instruct them on the record where to look. You must deal with this ahead of time.
Don't, especially with inexperienced lay witnesses, ask the question then abandon them by burying your face in your docs. Even experienced actors do better looking at attentive, sympathetic faces. The top of your head is not good company in a stressful dep.

You're a very experienced media consumer. Bring that judgment to bear in this high-stakes production.
Your witness, counselor.

Video Deposition Tip: Vetting your producer--The Long Version

Yes, the nineteen century has served the law well for hundreds of years but how do you choose someone to shoot your video deposition?
Ask around, colleagues, court reporters.

When you find someone, ask them:

What kind of camera/recorder do you have? You can make an adequate picture with a one chip camera, though everyone has three chip cameras. Recording to VHS tape is over. DV, standard definition is fine. HD sounds better but I have reservations about all the empty horizontal screen on each side of the (one hopes) vertical deponent.

How early do you get there? (My usual is forty-five minutes to an hour early, though I can throw my setup together in about twelve minutes.)

What's your audio setup? They need clip-on lavalieres for each speaker, balanced audio, (if they don't know what that is, wish them well and move on), a mixer, also balanced, headphones that cover their ears (some people are too cool to wear these because they look funny and they mess up their hair. These people are too cool for you.)

What's your backup recording equipment? I feed my whole digital video and audio signal to a second digital recorder AND make an old-fashioned audio cassette for the reporter. Once I had to borrow that audio cassette back to replace the audio on a question.
Are you a notary? Some jurisdictions require this. I'm inordinately proud to be one and I love administering the oath.

Do you know the law about video depositions? There are some national standards and some local color. You should keep a copy on your iPad.

How fast can you turn around a dep? Think ahead about what you need.

Can you edit it when you get the judge's decisions and deliver a dvd? Again, can they do it fast enough. In Illinois, the judge gives his dep edit decisions along with motions in limine and there's always a rush to get the dep ready for the next day. I'm ready for that.

What does it cost? They should be able to tell you exactly for a given amount of time. I measure it from the scheduled start of the dep until it ends for the day, rounded up to the next quarter hour. Dvd copies are charged by running time. If you cancel the day of the dep, I charge for a first hour, my minimum.

If they're defensive or shaky on any of this, wish them well and move on. Every city has someone good. If not, call me. I love to travel.

Video Deposition Tip: How bad can the other side make your deponent look?

I just edited a settlement video using the discovery dep of the defendant doctor and he had his tie loosened and had two water bottles and two Red Bull cans on the table in front of him.
He was well-spoken and may have made a pardonable medical error, but his tie was loose and he had all those products in front of him.
He explained the occurrence in a way that made sense to me as an informed layman, but his tie was partway off and there were those water bottles and all that Red Bull.

Video is not fair. It is not an Apollonian balancing of facts and probabilities. It's a show; it partly bypasses some of the higher cortical functions and works on the limbic system. It's not enough to have the law and the facts on your side. You need to make the best showing possible, also. To do less is to shortchange your client.

So all those things you can control -- the tie, the bottles of stuff, the background behind the witness, the lighting -- control them.

Settlement video + Day in the Life: Record audio or not?

This is an evolving area. You need to decide before you shoot, say, the plaintiff's home life, will you record audio while shooting the video?
Attorneys tell me this depends on if you guess your judge will let you keep your out takes secret, treated as attorney work product.
If you guess your judge will force you to produce all the tape you shot, not just the part that was edited into your finished evidence, then you have to think about what the mic will pick up while shooting. It's possible, with a skilled producer, to end up with a camera original tape that just has the evidence you want on it, but nothing prejudicial. It's called cut in the camera.
I've shot thousands of hours with this mindset, but it doesn't come naturally for producers. They like to shoot everything and sort it out in the edit suite.
If you don't shoot cut in the camera, you eventually will have a shoot where you have case-destroying bits of audio audible on the camera original, things you would never include in the carefully edited final product.

The airtight option is to record no audio. Set the camera's audio input levels to zero, don't connect a microphone, nothing on the tape but hiss.
The middle way is to carefully control what the mic hears. Admonish everyone to be on their best behavior as if the defense were in the room. I like this way.
The unconcerned way, the I'm-sure-my-judge-will-let-me-keep-out takes-secret way, is to just let the mics pick up what they will and decide during the edit what goes on the finished, redacted video.

Case in point: Last week I shot a plaintiff in rehab (WARNING, not safe for the squeamish) who regularly had to have their airway suctioned out. It was very uncomfortable for them and it sounded horrid. That sound will be compelling in court. The jury will cringe at the plaintiff's suffering. No sound, no cringing. But the attorney needed to decide ahead of time, weighing the risks of recording audio.

Audio is the secret weapon of 'video'. You must decide ahead of time about this issue.

Video Deposition Tip: What to wear? It matters.

Go to Wonkette for a ruling on the high ponytail as an acceptable look for someone who wants to make partner. (Not kidding.)
I'm talking about what your deponent should wear and should avoid.
No clanky jewelry.
No rustling scarves that add simulated wind noise to every head movement. Attorneys please copy.
Keep hair off the mic. More simulated wind noise.
No narrow stripes, no small checks. They create a kind of cheap sci-fi special effect of moire that looks alive.
Shiny fabrics are a risk for unwanted glare.
No yoke neck, with bare skin to the xiphoid process. Your poor video producer needs something to clip the lav mic to. Like the poor Scottish railroad engineer who was brought to Illinois and complained, "Ye hah na place to put your tunnels through!"

Some image considerations:
You may want your witness to look poor or rich, sophisticated or just a simple person looking for justice. Dress them accordingly. You'd be surprised at the witnesses who show up in scary clothes.
Hang the coat somewhere besides the back of the chair.
If you want them in a tie, get it on straight and not too tight.

No bright whites against dark skin. Some video equipment and some shooters can't get a good recording of this contrast ratio. I can, but it's not a universal skill.
Some doctors have a special light gray or light blue lab coat for video deps.

The impression your witness makes is a ferociously multi-variant equation. Clothes are a controllable factor. Control it.

Video Deposition Tip: To edit out silences or not?

This is a judgment call between you and your video producer.
I'm for leaving them in, except passive-aggressive silences where an attorney stalks out and the questioning attorney wants to leave the camera rolling. "Wait til the special master sees this!"
To me, this is one of the strengths of video, bringing to the courtroom the kind of timing, demeanor, et al., that the jury would see from someone in the jury box. Does the deponent confidently answer right away? Do they shuffle the papers, change colors, look to their attorney, and give their lying 'tell'?
If I were writing the rules, the long silences that get cut would have old-fashioned intertitles saying how long the excised time was.
Your call, counselor.

Why I make litigation media

Methodist A: Do you believe in total immersion baptism?
Methodist B: Believe in it? I've seen it!

I make litigation media because I believe in the system. I've seen other ways to settle disputes and, as a fallback when nothing else works, courts are the best. The other fallbacks -arson, mob violence, contract killing, canon law -are worse. Arson, say, might be better in some cases, but if I had to pick one and exclude the others, it's litigation hands-down.
Plus, as a freelancer, I get to hedge my moral bets. I work for people I believe in. (There are two talented and successful plaintiff attorneys in Chicago I won't work for.)

So after hugging it out, intercession by friends, and trial by social combat have all failed, litigation is the best bet for society. I'm all in on it.

Video Deposition Tip: HD, SD, 3D

Video now comes in a Super Variety Pak of formats, resolutions, shapes. Here's my judgment call about what to use for video depositions: well-recorded SD, standard definition.
This is the old television shape, before HD appeared with the frame stretched horizontally. And before high resolution pictures made every newsreader nervous about how late in life they're be able to appear.

Here's my thinking: The narrower shape is better for depositions, which are just talking heads. They don't need all that room on the sides of the frame. In fact it's a problem to make sure there's nothing distracting that far to the sides of the witness.
The lower resolution is okay because people look better.

A drawback to using the old SD is that there's a subconscious inference of quality when people see the latest shape and the higher resolution. I don't have any solid research on this, so you're getting my educated guess.

You could hedge your bets by recording in HD, high resolution, horizontal shape, and then just use the middle of the frame. Slice off the sides in the edit suite. That would give the narrower shape with the quality inference of higher resolution. Not to make you nervous, but I'm afraid this is an artistic decision. Not the kind where you press the back of your hand to your forehead and, in french accent, wail, "Ah am an ahtist. Ah can't work like dees!" Just a multi-variant equation with no official solution.

Video evidence, sooner rather than later

Say you'll need to prove to a skeptical defense that someone is actually dead. You may have less than twenty-four hours to get video of the body. Schedule it now or be forced to fall back on table pounding and swearing contests.
It's never too early to document.

Video Deposition Tip: Do a test view with photos, MRI's, et al.

Off the record, set up the photo and have the shooter show you what it looks like on his monitor. If he doesn't have a monitor, get a new shooter.
Do you see the detail you need? Do you need more light? Should the camera be closer to fill the screen better?
Is there glare? Tilt it until it's clear.
For x-rays, make sure the shooter will iris down. The exposure is different for people and x-rays. If this mystifies your shooter, encourage him to go back to film school and finish his thesis project.
Arrange with the shooter to go off the record when it's time to set up for viewing and shooting the photos. You don't want your jury to watch anyone fumbling with them. No one needs to see a camera looking for a shot and then focusing.
How will your witness steady the photos? The telephoto is unforgiving about shaking.
Do you have a pointer so her finger doesn't cover the important detail or leave the jury wondering which was the important vertebral body? Laser pointers sometimes don't read well on video.

Does the shooter know when to pull back from the closeup?
Turn off the lightbox as soon as you're finished with it. It can make humans look bad to share the frame with one.

This can all take about 90 seconds to check. How long will it take you to make up for misusing your expensive visuals?

In general, force yourself to see what's really on the screen, not what you hope it shows.

Pricing. Mine is really simple.

You tell me about the case; I take notes and ask questions, lots of notes, lots of questions.
Together we make as detailed a media plan as possible at the time.
I give you a flat rate for producing the media and helping present it.

I base my rate on my educated guess about how long it takes. I've done this so much, my guesses are really good. Unless you make the project bigger, my flat rate stands. Even then, I'm not stingy with my time and I'm not worried about getting paid for every last pixel. Plus, while there are greater artists in the video world, I'm really fast.

You'll feel like you got more than you paid for and we'll both want to work together again.

I think it's more important to focus on the work and not bill in 6 minute increments.

Media Case Plan: Mass media coverage of the incident

Research existing media. A big old-fashioned train crash, cars randomized, just a huge, colorful mess. Pictures of that would stir emotions and show some of the facts of the case. And it was covered on the local network affiliate with great pans at eye level and helicopter overviews! Two years earlier.
Comes now the plaintiff who would sure love to have that video. But local stations sometimes keep their footage and sometimes don't.
One fallback is video monitoring services. They record many television channels continuously and archive it. Tell them the date and they'll sell you a copy of the footage. Networks archive their own footage. This train wreck didn't get archived for some reason. So I went to back channels and found out at least one channel's coverage was shot by an acquaintance who saved copies for himself because it was just so cool. He was happy to help out and my client got some priceless help for his case.
If you buy from an archive, spring for the higher quality copy, not a DVD. It's worth the small extra money.
These days, lots of people carry cameras better than broadcast equipment from the time of that crash, so be ready to ask around. Also be ready to have your producer process the footage to take out the amateur shakiness.

And the train wreck case? Big, old-fashioned settlement. (Thanks again for the footage, Neil. I owe you one.)

Media Case Plan: Let the producer sort the family photos

I'm working on a rush (no Media Case Plan) production for a settlement conference in two weeks.
My very smart client (what a pleasure!) has family photos that the family selected, so they're what families like to see. But my job is to create something that the defense won't like to see, a slightly different brief.
I'll have to go out to the suburbs and go through their photos myself, looking for useful, case-making images.

And the moral of this story is to let the image experts sort through the family video and photos, et al.
And do it before their basement floods.
Again.

Media Case Plan: different stages, different media needs

The intake interview with a potential client is the right time to have media on your mind. Part of the strength of their case will be what media exist and what could profitably be created for the case?

Research/investigation. Was there media coverage of the incident? This is the easiest (cheapest) moment to archive copies of it. What home movies, photos, documents, trophies, email (see ABA recommendations about e-discovery) exist?

Discovery. You're of course including photos, videos, et al., in your production demands. Are you ready to whip them out at discovery deps? Like the James Thurber cartoon -- attorney confronting witness with a kangaroo, "Perhaps this will refresh your memory."

The Press. Use it judiciously, as it were, and no one loves your media more than a reporter whose job you've already done for them.

Mediation/Settlement. You're ready to scare the insurance company with the heart-wrenching video. It wouldn't be admitted at trial, but it will have an effect on even the most gimlet-eyed adjuster. And the same footage can edited for an admissible Day in the Life.

Trial. The Show.


So your Media Case Plan begins with the first contact and covers the entire timeline of the case. It's never too early to plan, but it could be too late.

Media Case Plan, now.

What's the best time to find out the plaintiff's brother has home video of the pf, shot two days before the incident, playing softball, looking really healthy?
Three days before the settlement conference and four months after the brother moved to Helsinki, losing part of his household to a shipping mistake?

What's the best time to consider videotaping a statement from the treating physician, in a relaxed, telegenic setting, not worried about cross-examination?
Three days before the settlement conference and during an unlucky run of emergency surgeries he has to perform?

A genius once advised me to make trouble with the left hand and sell salvation with the right. I don't have to make the trouble, but I hope you're getting sold on the salvation.

When you consider taking a case, consider media. Is there extant media that makes it a stronger case? Can producing media strengthen your case?
In other words, make a Media Case Plan.

Watch this space for How To Make a Media Case Plan.

Settlement video: Yes, write a script; save money; save your case.

I have $750 for every time an attorney has insisted I go out and shoot first, and then we'll see what we get and edit that.
That extra money is a rough guess for the average extra cost for not planning.
Sample later conversations:
"You didn't get closeups of her legally blind eyes? You need to go back to Peoria and shoot that."
"We need to have him say something about his kids. When can you re-shoot?"
"The family cleaned out the house two months after he died and threw out the photos and the video. Can you go back and shoot the house? It's all we've got."

Please, for the love of winning, plan. Plan right away. Plan before the relatives move away, before the hard drive gets erased, before the plaintiff's condition changes, before the site gets repaired and new guard rails are installed, before the cost of making your case goes up.

Media Case Plan, your next good idea.

Video Deposition Tip: The mic is the jury's ear...

...and not metonymically, either. Imagine a jury member is listening to your expensive expert and you lean into the box and rub their ears or hit them with papers. Kind of vitiates all that preparation, no?

So get a good video producer to put the mic in the right place.
Leave it there.

Don't move it somewhere you think looks cooler.
Don't throw it on the table in a dominance display.
Don't lean your papers against it.
If you like clanky jewelry --hip hop chains or that huge emerald necklace you bought after the last big award-- keep it away from the mic. If that's impossible, take it off for those few hours of the dep.

You have the jury's ear. Be nice to it.

What they don't teach you in law school: Multiple uses for video footage

You have your producer shoot the scene, the plaintiff's current condition, experts' statements.
This raw material can be the edited six ways from Sunday into video for the settlement brochure (Scare the Insurance Company, I call it). It's one thing to acknowledge in dry prose, yes, she has limitations on ADLs. But seeing someone struggle to get a spoon to her mouth or lie quietly while someone changes his diapers, that's an order of magnitude more effect.

Of course you're getting ready for trial. One of my client firms makes that explicit. We prepare every case for trial. Like hip hop gangsters who leave their shoes untied to show they're not going to run away if there's trouble, they're ready. So the same footage can be edited into admissible demonstrative evidence.

You're also ready to try this case in the press. One huge class action had me produce clips that ended up on the CBS Evening News and were played to US Congressional hearings. Other edits were used for a road show to recruit plaintiffs for the class.

Maybe you don't need all these for every case. But the marginal cost and effort to have it in the can is nothing. You may never have to draw your weapon, especially if the bad guys see you have one.

Settlement video, no rules of evidence, no limits

Settlement video is part of a settlement brochure. It can be a day in the life or a heart-wrenching testimonial to a now-blighted life.
If your video is going to court, it's restricted by the rules of evidence and the wishes of whatever judge you drew to try your case.
Video for settlement has neither of those constraints.
Granted, your audience is going to be flinty defense counsel and gimlet-eyed adjusters who've seen everything. But even professionals, who assure themselves that this inflammatory stuff will never get admitted, are not entirely rational. And that's part of the edge that settlement video can give you.
Maybe my most powerful settlement video was my first one. The plaintiffs had a newborn who should have been healthy but obstetrical mistakes gave her a short, painful life. My clients had video and photographs of the likable parents getting ready for their first child. The nursery was ready, there was a "Welcome Home" sign outside. I had home video of the baby in the NICU, with life support tubes, being rocked by her mom, while mom sang "Jesus Loves You" and "Que Sera, Sera".
The video I made with this made me cry. It made almost the whole small law firm I made it for cry. For all I know, the defense cried too, because they settled right away when they got it with my client's increased demand.
The video would never be admitted in court, but it showed the devastating emotional power of the case in way that was impervious to rational resistance.

Settlement video can lay out the facts and theory of a case, the logos, and/or succeed with pathos.

What they don't teach you in law school: Where you sit matters

Video Deposition Tip:
The witness will look at you.
If you want them to be sympathetic, someone the jury will get to know and identify with, all your wonderful witnesses, say, sit close to the camera.
If you want them to seem distant, not really accessible to the jury, sit next to them. People in profile are just less likable, ceteris paribus.
Objection, assuming facts not in evidence!
Okay, look at a few headshots, and see who you like more.
And while you're down there, next to the camera, check out what the camera is actually seeing. The shooter will be proud to show you.
More later about what the camera sees.
Your witness, counselor.

American Bar Association TechShow: Victor Medina's Bespoke Legal Services concept.

Counselors,
Much hand-wringing about the shrinking pie for attorneys, competing with free legal advice on the web, doc production sites, et al.
At least one maven recommended confronting the cut-rate services by being better, not cheaper. Victor Medina's concept of Bespoke Legal Services includes being better, being heard, and being "An inch wide and a mile deep."
He quoted Henry Ford to the effect that, "If I'd ask people what they wanted, they would have told me fast horses."

More about TechShow later.

Video Deposition Tip: Objections+editing are your friend

When you get an objection to a question, rephrase and ask it again. Still objected to? Rephrase, repeat as needed. All those other objectionable questions won't be on the video the jury sees. They just didn't happen.
So you got the chance to test the opposing counsel's theory without sullying the jury's record.

Now, you need to work with your deposition producer to get the right edit, with the judge's instructions. But that's another tip.

Pre-production: How much does the attorney want to be involved?

Fortunately, most attorneys are sophisticated media consumers. Despite the nineteenth century having served the law well for hundreds of years, they know that making video involves more than owning a camcorder.
Often, the earliest questions I ask are, "Have you made media before?" and "How did it go, did you get what you needed for the case?"

One assessment I always make is, "How much attention, patience, cognitive overhead, does this attorney have for creating media for this case?" I'm a producer because I dig almost every aspect of the art and craft. (If I could have someone else wind up the cords and worry about the batteries, it would be perfect.) But the attorney has other stuff to worry about, I guess.

If it's your case, do you want to script it or have me do a rough draft and then consult you?
Do you want to be at the shoots?
Do you like to sit in the edit bay with me or would you rather I just bring you a rough edit and talk about it?
Fortunately for me, motion pictures+sound is potentially one of the most complex artforms, up there with architecture and grand opera. So specialists like me will get paid for keeping all that stuff in my head. But attorney collaboration is crucial.
Finding the right balance of hands-on versus call me when it's done, that's the first task.

The jury/audience

Work backwards from the moment you present this bit of evidence. When you hit PLAY, what do you hope happens? What impression do you want to make? What will the jury feel or learn or ignore?
These are some of the first questions I ask when a client brings me a case. An attorney might have a kind of pre-packaged idea about, say, video. "Well, we need a half hour video about X."
But I want to know what effect you want to have.

CLE: Video Deposition Clinic

After shooting thousands of depositions, I've seen everything.
Attorneys whisper the secret to their case to their assistant, simultaneously putting it on the video record.
An attorney won't turn off his cell phone so his case-making questions are sometimes scored with his dark dancefloor ringtone.
Or an attorney who's charming in person refuses to wear his mic so everything he says sounds like he's using the phone in the holding cell at County.
A clattery necklace that draws attention to an abyssal cleavage, also adds the sound of an earthquake to her objections.

The encouraging thing is that younger attorneys know they need this little bootcamp to get it all right. Older attorneys have unknown unknowns, alas.

Introduce yourself with web video

Potential clients see your site when they need an attorney and their decision will be, like most human decisions, emotional.
They're needy and they want to see that you can take care of them, that you're trustworthy and that you look like the real deal.
Video can tell them about you in a way that you can control.
Anyone can have a bad moment on the phone with a new client, but what if their first contact with you is exactly the way you want it, everytime? That's what video does, it preserves your best effort and controls what the potential client will see.

So, maybe it's time to dump the headshot and put something more human in that square. Talk to them before you even meet them.

And as a producer, my free advice is to make sure someone is making sure the sound, the light, and script are good for your firm.

TIP: Audio is the secret weapon

Which medium survived, silent movies or radio?
When you're making video, give at least half your attention to the sound, to what the jury will hear.
Two facts about audio:
1) Audio is irresistible. People don't have their defenses up for what they hear. It can even effect an audience unnoticed.
2) Good audio is essential. You can have pictures recorded by your phone, xeroxed through several generations, and they can still work if the audio is good. But not vice versa. Modern audiences don't forgive bad audio.

Static, wavering volume levels, 60 cycle hums, rustling papers--listeners will tune you out.
Intelligible speech, with warm close miking, powerful sound effects, (even music if it's settlement video)--sound can save a presentation.

I have several mics each of which cost more than my car and they're worth their weight in jury awards!

Video, the new vernacular

To a jury, who have interrupted their continuous contact with screens to sit in judgment of your client, video will be what reassures them that they're getting the truth.
It's just another medium for making your case, but to your jury, it's the one they already trust.
So use it wisely, to make your point, to win.