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.