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.
Thursday, July 21, 2011
Wednesday, July 20, 2011
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.
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.
Tuesday, July 19, 2011
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.
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.
Monday, July 18, 2011
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.
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.
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.
Monday, July 4, 2011
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.
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.
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