Visual impact: using video settlement brochures

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Negotiation and Settlement

December 2010, Volume 46, No. 12

Visual impact: using video settlement brochures 

Eunice Trevor

Obtaining the best settlement for your client sometimes requires creativity. A video settlement brochure with compelling images and narration can capture defendants’ attention and convince them to settle the case.

 

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Lingo list

In today’s technological world, people expect to get information quickly and in a visually interesting way. Anything you use to convince defendants to offer the best possible settlement must grab their attention and convey the strength of your case.

A recent case in which I created the video settlement brochure for a client I’ll call Jim illustrates the power and effectiveness of a well-crafted settlement brochure. Jim was hit by a car when he was four years old. The accident left him severely brain damaged and paralyzed on the left side of his body, and he was declared incompetent.

At 27, Jim had to be institutionalized because of aggressive behavior and a tendency to start fires. Left alone at a facility for brain-injured adults, Jim started a fire in a bathroom. He was so severely burned that his right leg, his good leg, had to be amputated.

Jim sued the institution, and at first, his case seemed to be destined for trial. Liability and economic damages were vigorously contested. My firm created a visually dramatic video settlement brochure, which we previewed for the defense before trial to emphasize the power of his case. The case was confidentially settled for a significant amount.

You, too, can produce a video settlement brochure that maximizes the chances of producing the best settlement for your client. To begin, you’ll need an experienced videographer and editor to help you accumulate a library of interviews to work with. For example, Jim’s parents, brothers, burn surgeon, and therapists were witnesses for his damages. Concerning liability, an administrator at a facility for brain-injured people addressed proper protocol for caring for a patient with Jim’s deficits.

Witnesses should appear as relaxed and natural as possible. Given that people are often most comfortable in their own homes or offices, try to tape their interviews in those settings. Interviews with family and friends about the physical and emotional impact of the accident should be conducted as soon as possible before the memories fade.

Prepare witnesses to dress appropriately. Experts should wear their professional garb; for example, doctors, rehabilitation therapists, and other medical experts should wear their hospital coats. Lay witnesses’ clothing, hair styles, and makeup should not distract the viewer. The videographer should provide a small monitor for you to preview the composition of the setting and to check for any distracting elements, such as reflective eyeglasses or dark shadows on witnesses’ faces.

It is important to establish a rapport with interviewees, so begin each interview with innocuous questions. Once witnesses are comfortable, ask them about their ordeal. Use pointed questions to help them articulate their thoughts clearly and succinctly in “sound bites.”

For example, leading questions like “what do you remember first?” and “what do you miss most?” will usually result in sound bites because the witness will repeat the question in his or her answer.

Every trial lawyer has experienced the agony of watching a witness fall apart at his or her deposition, even after careful preparation. At Jim’s father’s deposition, he became intimidated by the room full of lawyers. But the video brochure gave Jim’s father a second chance to tell his story. In the comfort of his own home, he gave testimony that was heartfelt and powerful. Even though the deposition was still relevant, the brochure provided a more helpful viewpoint.

The video settlement brochure also provides an opportunity to showcase a powerful witness the defendant overlooked or failed to depose. In Jim’s case, the defendants had never deposed Jim because he had been declared incompetent. His medical records seemed to suggest that before the fire, he was confined to a wheelchair and had a severely limited lifestyle, but this was incorrect. To stress the changes in his life since the fire, we included photographs of Jim before the accident, standing and engaged in activities like softball with other disabled adults and volunteer work at his church.

After establishing a rapport with Jim, we conducted a video interview. The video portrayed an appealing, expressive young man who described the changes in his life. We asked him: “What were your first memories after the accident?” “What do you miss since your injury?” “How do you feel about your scars?” Jim’s testimony helped convince the mediator and defense counsel of the potential for a substantial verdict.

Documenting the progress of your client’s injury is critical—take video and photographs of your client early and often. Burn injuries, like Jim’s, progress over a period of about two years from red, raw wounds to tight, uneven scars. The rehabilitation is painful and complex. Photographs of Jim’s burns and video of him struggling during painful physical and occupational therapy were a compelling complement to the burn surgeon’s and therapists’ testimony.

In most cases, the video should include medical illustrations. For example, in a case where a client has suffered paralysis from a spinal cord injury, medical illustrations can be created from films and test results. Properly prepared, they will depict the fractures to the spine and the procedures used to stabilize it with surgical screws and rods. The orthopedic surgeon can then explain the procedures in his or her video interview with the illustrations superimposed over this testimony.

Focus on the defense

Consider taking videotaped depositions of the defendant and the defendant’s witnesses. Their admissions and contradictory statements should be incorporated into your video. Reading an admission is much less persuasive than watching a witness squirm and struggle to answer a question that required a simple yes or no.

We videotaped depositions of the aides who were responsible for caring for Jim on the day of the accident, as well as the administrator and doctors at Jim’s facility. One of the aides found Jim in the bathroom after the fire and did not know how to use the fire extinguisher. His testimony and demeanor at his videotaped deposition emphasized the facility’s failure to train staff in the care of brain-injured residents. This revealing testimony was incorporated into the settlement brochure and served as persuasive evidence of the defendant’s gross negligence.

Video can also effectively demonstrate your liability theory. The defendant in Jim’s case was an institution that instructed his caretakers to keep him in their “line of sight.” To illustrate that had the aides followed these instructions, they would have seen something or smelled something to alert them to the fire, we filmed the scene of the incident.

We taped the facility’s kitchen and living room, where the aides claimed they were positioned at the time of the fire, proving that had they been in those positions—which were 10 feet from the bathroom—it would have been impossible not to hear Jim screaming or smell him burning. This simple and inexpensive demonstration was convincing evidence that the aides had abandoned Jim and were not there at the time of the fire.

You can use animation to help explain complicated liability theories. Working closely with your liability experts, animators can use photographs of the accident scene, blueprints of equipment, and other evidence to construct 2D or 3D animations to illustrate the dynamics of the accident.

With advanced computer graphics, a “virtual camera” can then be placed anywhere in the digital environment, including on the defendant’s premises, to give an otherwise unattainable visual perspective. Although not a problem in Jim’s case, fires and explosions often have complex cause and origin issues. If these had been issues in our case, we could have used computer animation to simulate the cause and progression of the fire.

Final product

Before you put together your brochure, create a script to guide you.

(See “Sample Script” on p. 17.)

Even complex, technical issues should be reduced to a few sentences.

Edit interviews down to the most compelling two to three minutes (consider editing out your questions), because viewers tend to lose interest in longer interviews. Like a news story, the video should give the viewer an idea of the type of accident involved, a description of the parties involved, and your theory of the case. The order in which you present these elements should be guided by your sense of how to tell the story.

After you have inserted the visuals and are satisfied with your script, you will need to select a professional voice-over announcer to provide an introduction and announce the witnesses. The voice-over should be recorded in a sound studio, which has the necessary editing equipment. An announcer will give your video the appropriate sound, pacing, and emphasis and will provide a segue between the elements of your story.

The cost of preparing the brochure will vary with the complexity of production, including the length of the interviews, and the amount the various professionals involved charge for their services. When estimating how much time a videographer will need to spend filming, allow about 45 minutes for each expert interview and 20 to 30 minutes for each interview of a lay witness.

The editor’s work—assembling the interview excerpts and inserting photographs and supplemental footage— can be minimized by providing detailed script instructions. A simple brochure featuring just a few interviews should last 5 to 10 minutes and take about 10 hours to edit. For a 20- to 30-minute production featuring interviews with several experts, family members, and friends, estimate about 40 hours of editing time. Also budget an hour of studio time for the professional announcer.

These professional services don’t come cheap, but a video settlement brochure is a sound investment of your firm’s time and money. It will allow you to present complex issues in a clear, persuasive format that should result in the best settlement for your client.

Eunice Trevor is a partner at Saltz Mongeluzzi Barrett & Bendesky in Philadelphia. She can be reached at etrevor@smbb.com.


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