by Frederick S. Aumick, CLVS
A Video Settlement Documentary (VSD) is a highly effective video documentary specifically designed to convey the most important facts about a case. It is produced in a documentary style similar to what is seen on broadcast TV, with the exception that there is no on-screen talent; the cohesive thread is the off-screen narrator. Its purpose is to convey the most important facts about a case, thereby hopefully to persuade the adversary to settle the case promptly. It is a synopsis of what counsel intends to produce at trial and can explore issues of liability, damages, or both. It can be as detailed as is deemed necessary - but always keeping in mind that you do not want to bore the viewer. It is produced with the expectation it will help the parties arrive at a settlement of the litigation, thereby reducing ongoing costs, and especially the costs of trial, for all parties. It is also not evidentiary. Under normal circumstances, it will never be played in a courtroom, but it is a very important part of counsel's presentation in a mediation or arbitration. Indeed, with many attorneys it is the whole presentation, with the exception of a brief introduction and supporting documents. Because the VSD is not evidence, you can use different camera techniques than you are constrained to in a video deposition. As an example, we quite frequently use very tight headshots, focusing the viewer on the emotions being played out on the screen.
Who uses a VSD? While there is no reason why a VSD won't work for both sides of the litigation, my experience has been it is primarily the plaintiffs who are using it. Similarly, it should be effective in all types of cases, including commercial cases, but that has not been my experience. This I'm sure is related to the general nature of our business: more concentrated on personal injury, medical malpractice and products liability. As a consequence, this presentation about VSD's will focus on use by the plaintiff's counsel.
The most important benefit of the VSD: It enables the decision-makers to see the plaintiff's position in the case, without the filtering of defense attorneys. What I mean by that is: claims adjusters, claims managers, and high-level insurance company executives may not be aware of weakness in their case, or the strength of the plaintiff's case. They may not even be aware of the full extent of damages, all of which will cause them to evaluate the case differently than if they had the proper data.
At what stage of litigation can the VSD be used? The VSD can be an effective tool at all stages of litigation, depending upon the type of case, from very early in the case, pre-suit, in the mediation process or right up to literally the day before trail. An example of when it could be used very early: assume there are catastrophic injuries, such as, paraplegia or quadriplegia, mutilation, brain damage, loss of limbs, etc., and there is a limited amount of coverage by the defendant. Plaintiff's counsel has asked for the policy limit, but it has not been tendered. Defense counsel may be asserting no liability or comparative liability on the part of the plaintiff. A short VSD, incorporating very brief interviews of eyewitnesses, statements made at the scene to the investigating officer, whether or not they are subject to statutory privilege, and a brief review of medical records, plus a Day in the Life of the injured party in the hospital, can be very persuasive to the carrier to tender the policy. If the insurance company does not, and ultimately there is a trial where the jury verdict is in excess of the policy limits, then the VSD can be a very persuasive piece of evidence in a bad-faith action. This is probably the only time that a VSD can be used in a courtroom.
Some VSD's only deal with the subject of liability, and some only with damages; others encompass both liability and damages.
Source materials used in a VSD: Many sources of material are available. I try to think of the case in a chronological order, so the first question that will come to mind is: Is there broadcast material available? If not, there may be police or eyewitness video or photographs. We use video interviews or depositions of the parties, eye witnesses, before-and-after witnesses, family members, accident reconstruction experts, doctors; rehabilitation experts, and economists; and we incorporate animations, field footage we shoot, police photographs or videos (maybe even a person under the influence of alcohol or drugs); hospital records, X-rays, MRIs and stenographic transcripts. And we create graphics to help tell the story. In more than one case, we have re-enacted the accident. In fact, we use anything you would expect to see in a 20/20 or 60 minutes style documentary.
Quite often, through the interview process, we discover many facts about the case the attorney was not aware of, and not uncommonly we have increased the value of the case by the additional facts we have uncovered.
What does the VSD cost, and what value does a case have to have to warrant doing a VSD? The VSD varies greatly in cost from as little as $1,500-2,000 to as much as $18-19,000 plus travel costs, depending on the number of people to interview, field production, anticipated editing time, etc. If, for example, a VSD is needed to get the carrier to tender the policy limits in a catastrophic injury case, where the available insurance is totally inadequate for the damages, the cost may be $1,500 to $2,500. You would need video or still shots of the person in the hospital, the vehicles, possibly one eye witness interview, interview of the plaintiff if possible, or a family member. You may be able to get this done in one to one-and-a-half days. My policy is to give the counsel a best guesstimate. But I also advise them I bill by my usual production and post-production rates, plus all travel-related expenses.