In this economy, litigants are extremely cost-conscious, and have been successful in forcing many law firms to develop creative fee structures, and driving the rates of legal fees downward, deflating what some have even referred to as a legal fee bubble (see Are We In A Legal Profession (Pricing) Bubble?, by Susan Cartier Liebel).
One way to lower the costs of litigation is by using technology every way possible for evidence management and trial presentation. Another is to avoid trial altogether, when possible -- although I generally try to encourage going all the way to trial by initiating a group-chant session with my law firm clients: “Settle is just another way to spell Sell-Out.” That doesn’t always fly with the parties in the matter, however.
So, preparing a DVD for Mediation or Settlement Conference can be a very effective method of presenting your case to opposing counsel and their client. Rules of Evidence aren’t really an issue, so you can go a little over the top, but should not over-do it. Here are a few steps to creating a compelling presentation, aimed at convincing opposing counsel that it would be advantageous for them to avoid trial. While this topic certainly includes some ideas specifically related to Plaintiffs in Personal Injury cases, many of the basic principles may be applied to most any matter.
1. Gather the Evidence: You should consider all of the available evidence in the matter for inclusion in your DVD. Although you won’t want to clutter it up with duplicative or relatively mundane exhibits, you should be sending a clear message that you are preparing to go the distance. This can even include subtle hints, such as Bates numbering of documents and the manner in which your exhibits are organized.
2. Film a “Day-In-the-Life” of Your Client: While this is not unusual for Plaintiffs in Personal Injury and Medical Malpractice suits, it can also be an effective tool for Defendants. You might obtain the entire video via subpoena, or you might even consider filming your own, so you can spin it your way. In any event, the “more is better” rule definitely applies, in order that you might have some good options to work with. An article by Robyn Weisman appeared recently in Law Technology News, Prime Time, sharing how litigators use 'Day in the Life' videos to sway insurers and jurors.
3. Edit, Edit, and Edit Some More: This is really more about art than science. Every video editor/producer has a different feel for the way things will work, what is important, and how best to present it. I have seen many “styles” of Day-In-the-Life videos. Some include music, some will have a lot of narration or witness statements, while others will appear more documentary. My personal style is the latter – I’m not generally a big fan of drama and attempts to play on emotions when it comes to legal video productions. That is likely influenced by my extensive use of media in the courtroom. I will say that you’re not going to be allowed to play “All By Myself” in court to the jury, as a series of tear-jerking images are displayed.
4. Adding Demonstratives: Although you might think it would be a bit early in the game to be developing some visuals, they can be very effective in summarizing key points, a timeline, or even testimony. The idea here is to give opposing counsel some choices, and no matter what they choose to focus on, they will be getting your message. You may add some of these into the video itself, but also include them as PDF files on the DVD.
5. Deposition Testimony: If you’ve videotaped your depos, you can easily include helpful sections of testimony via video clips. Again, you can add them to a Day-In-the-Live video, and/or you may include them as individual files. Even if you have not videotaped your depos, you can still include a PDF version of your excerpts.
Your final product might be a standalone Day-In-the-Life DVD, or it might be a collection of things, including the video, exhibits, testimony and demonstratives. The latter is generally my preference – show them what you’ve got, and don’t expect everyone to view everything. Also bear in mind that this type of project can be very complex, so allow plenty of time for gathering all of the parts, and then the production of your Mediation Package DVD.
Here are a few examples of relevant video excerpts. None of these are intended to serve as a complete package, but are shared here to help provide an understanding of the impact of video.
Title Test Mediation Video DVD Package: This shows the effective use of silence and titling to make a very powerful statement.
Day-In-the-Life excerpt 1: This allows the viewer to experience the frustration of doing simple things we take for granted.
Day-In-the-Life excerpt 2: This shows the effects of solitude, and resulting slow passage of time.
