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.
Showing posts with label settlement video. Show all posts
Showing posts with label settlement video. Show all posts
Wednesday, August 10, 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, May 16, 2011
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.
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.
Saturday, April 23, 2011
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.
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.
Thursday, April 21, 2011
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.
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.
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.
Sunday, April 17, 2011
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.
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.
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