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Attorneys offer their thoughts on using day-in-the-life videos

Author / Coordinator: Michelle Lore
Minnesota Lawyer
August 2004

A picture is worth a thousand words — especially in the case of a critically injured person who is trying to make others understand what a day in his or her life is like.

Videos outlining a day in the life of an injured party have been around for years. Plaintiffs’ attorneys say that they remain a critical component in presenting an injured party’s case — to those with settlement authority, as well to as a jury.

“This is an excellent medium to utilize in presenting a full case, whether for trial or settlement,” said Hibbing attorney Edward J. Matonich. “It’s as effective an instrument as there is and the impact cannot be replicated with mere words or writing.”

A visual aid

According to plaintiffs’ attorneys, the purpose of a day-in-the-life video is simple — to show an audience who their client is and what his or her life is like as a result of an injury.

“It’s one thing to write about injuries, but it’s another to have a day-in-the-life video,” said St. Paul attorney Gregory N. McEwen, who has carved out a niche representing plaintiffs in home-explosion cases. “There is nothing that explains more vividly the daily the struggle of a catastrophically injured person,” he said.

Woodbury plaintiffs’ attorney William D. Harper added that the videos give a defendant “a road map as to who the plaintiff is and how they present themselves.”

Practitioners stressed that simply having an injured client testify as to what he or she goes through every day is not the most effective way to present this information.

“[They] can talk about this stuff, but it doesn’t have the same impact as visualizing it,” said Matonich, explaining that a video shows the pain, suffering and emotional distress of a seriously injured plaintiff, as well as the nursing and medical care the person receives. “You can bring the jury into the home, [showing] the full impact of what that person experiences on a day-to-day basis,” he said.

Minneapolis personal injury attorney Peter W. Riley pointed out that the video is also an effective way to show what the plaintiff was like before and what he or she is like now. “Without a day-in-the life film, there is no amount of words or descriptions that will ever bring across to the jury what their life is like or what they have to go through,” he said.

Attorneys agree that day-in-the-life videos are not appropriate for all types of injury cases. Such videos should be used only in those involving severely injured persons or in wrongful death cases, they say, adding that the videos are generally expensive to produce with price tags ranging from $5,000 to $20,000.

According to Harper, the videos should only be used in cases “that justify the time and expense.”

Riley agreed. “You don’t want to do [a video] just to have done it,” he said. “You want to do it in cases that are significant, because they are not inexpensive.”

Riley stressed that day-in-the-life videos are typically used in significant disability and paralysis cases where an attorney wants to show graphically and clearly how someone’s life has been changed. “It’s got to be a significant injury case,” he said. “It’s not really going to do you any good in a routine soft-tissue case.”

In wrongful death cases, the videos are a little different in that they resemble a compilation of photos and testimony by family members as a way to demonstrate the loss.

“It’s not a day in the life, although you can think of it that way in that if you have sufficient photos and so forth, it becomes a day in the life because this is what their life was like before,” Riley observed. “So it will be put together in a different way, but the purpose is similar.”

Attorneys also pointed out that day-in-the-life videos, whether used in personal injury or wrongful death cases, are very effective settlement tools.

“Someone sitting in an ivory tower won’t be as impacted looking at letters or ‘puffing’ as they are with a video showing real-life situations,” Matonich observed.

Trial testimony

Some practitioners contend that having injured clients simply testify as to what they go through every day can sometimes actually be damaging to a case.

According to McEwen, there are often so many issues involved that when the witness merely talks about her situation she can end up looking like a “whiner” to the jury. But if this information can be expressed through a video that shows the person’s daily suffering, along with testimony supplementing the video, the person doesn’t look like a “whiner” but more like someone who is trying to do the best he or she can with the situation, he said.

Riley added that there are other reasons to curb the client’s trial testimony. “You probably want to limit the time of your severely injured plaintiff in the courtroom for a couple of reasons,” he said. “Number one is that it’s very physically draining. Second, if there is too much time the jury almost gets used to it and it reduces the impact.

Partipication required

There are numerous considerations that go into the decision of whether to create a day-in-the-life video. One is whether the client is even willing to participate, attorneys said.

McEwen said that in his experience, minor plaintiffs are more hesitant than adults, who generally are more mature and more readily understand the importance of the evidence. Younger clients are often embarrassed about their injuries, he explained.

Riley added that creation of these videos can be difficult for the families involved. “It can be very hard on the people who’ve lost someone,” he said. “And a lot of these people are embarrassed. Some of this can be very personal. You have to be sensitive.”

An additional benefit of creating a day-in-the-life video, according to Harper, is that it forces the attorney to get prepared, to think the case through early on and evaluate the evidence. “It’s a good preseason workout for the real season, which is trial,” he said.

Production issues

While some attorneys make all or part of the day-in-the-life videos themselves, most use the services of professionals to film and edit the video.

“We typically use a professional videographer,” Riley said, adding, however, that these videos can be created with just a basic home video camera. “It has a homemade ... less-polished look to it, but that’s OK with a jury because that’s what they are used to looking at.”

Harper said that he sometimes creates part of the video himself, but that he always ends up using professional help with the final product. “What’s good about those guys is they have facilities to do editing and final preparation,” he said.

Peter Neubeck, of Peter Neubeck/ Video in Minneapolis, has been producing day-in-the-life videos for nearly two decades. He said that despite the advances in graphics and technology over the years, those improvements have not substantially affected the format for day-in-the-life videos. Things like background music and especially high-tech graphics or displays can be distracting, Neubeck explained.

“The bells and whistles available to media people aren’t part of this process,” he said. “This is a storytelling process. I don’t want the media process to get in the way of telling the story.”

Creation of the videos generally occurs in three stages: pre-production, production and post-production. The pre-production phase involves getting information from the client and figuring out what needs to be done, Neubeck observed.

Neubeck said that he likes to keep the second phase, the recording and production stage, to less than two days. Procedurally, Neubeck performs the interviews while a cameraman records the conversations and activities being performed. He said that he likes to keep involvement by the injured party’s attorney to a minimum.

“I like to have limited involvement from the attorney,” he said. “I work best if I can work on my own with the client. Attorneys seem to change the dynamic a little.”

Post-production time varies, generally involving the review of five or six hours of tape and making decisions as to what portions to use and how to use it appropriately. Post-production also involves implementation of suggested edits from the plaintiff’s attorney, Neubeck observed.

According to Neubeck, it can be difficult to get an injured person to talk about things in a way that is useful to the process. It can also be a challenge to get them to actually show him how they now perform their daily activities, as opposed to simply describing them. “Seeing that is really important,” he said.

Objectionable footage

Attorneys that defend personal injury or wrongful death matters acknowledge that day-in-the-life videos can be a useful device for plaintiffs, but also say they can be misused.

“They can absolutely be effective settlement tools,” said Minneapolis attorney Louis J. Speltz. “The goal is to bring to bear the life experience and draw upon the life experience in a way that sends a message to your audience.”

Defense attorney Barbara A. Zurek, of Minneapolis, agreed that the videos can be useful.

“It may be a concise way to show the jury what the [plaintiff’s] day-to-day life is really like rather than a long litany of descriptions,” she said. “Sometimes a picture is worth more than just words in terms of presenting this to a jury.”

The problem, according to Speltz, is that sometimes the plaintiff’s lawyer loses sight of the ultimate goal of the video, which is to fairly and accurately portray the client’s daily life as a result of the accident. “That should be the lynchpin of the film,” he said.

Too often the videos focus on what the client went through to recover from an injury, rather than what life is like for him or her now, Speltz observed, adding that these videos should be reserved for “really big cases” involving seriously injured people.

Zurek observed that some videos are “somewhat dramatic” and “may not truly represent the day-to-day activity of the injured person.”

In such cases, defense counsel may object to the video, in part or in its entirety.

According to Zurek, if the video misrepresents the person’s activities or identifies medical procedures that don’t typically occur in their daily life that might be cause for objection. Objections might also arise if the video contains inappropriate background music or is otherwise inflammatory, she said.

Speltz added that another issue is whether the sequence of events identified in the video is fairly representative of the facts after the editing process. “Does it truly represent the daily life or only selected portions?” he questioned.

Defense attorneys also said that when they know a day-in-the-life video will be used at trial, they approach the jury with it in advance.

The attorney may forewarn the jurors during voir dire that they will see a particularly graphic video that might evoke an emotional response, Zurek observed. It’s important to find out if jurors can view such a video without becoming emotional or “overwhelmed with sympathy” or lose the ability to be objective, she said.

According to McEwen, defense attorneys may move to keep some or all of the video away from a jury, but that courts are generally willing to let the jury see these types of damages. He noted that he’s never had a case where a defendant was successful in keeping an entire video out.