What is a Day in the Life Video?
The sentencing in the recent Sean Combs trial lasted an entire day. While finding a seat in highly publicized New York trials (or the time to attend) can be difficult, there are hardworking local reporters that cover the events in more or less real time. One that I follow is Inner City Press, who live tweeted most of the Combs trial as it happened. While his tweets aren't quite a real time transcript, they're a lot closer than a traditional news story and capture a lot of the courtroom feel that many reporters leave out, such as cutting remarks from the judges and fumbling by the lawyers when something goes wrong.
One feature of the Combs sentencing that was somewhat unusual was a video that the defense assembled out of old footage of Combs. It was a bit of a “greatest hits” reel of Combs doing generally wholesome or charitable things, playing with children or attending events run by community-oriented organizations. It's not clear that this video moved the needle on his sentencing, but there was some discussion online about whether it was appropriate at all. Is it permissible to introduce a carefully crafted piece of video footage to present a party in a particular light?
While unusual in sentence hearings, one area where stylized video evidence comes up far more frequently is the personal injury context. Historically, video evidence was a defense attorney tactic, sending a private investigator to shadow an injured plaintiff and take surreptitious footage of them shoveling snow, lifting groceries, or otherwise engaging in normal physical activity without obvious disability or discomfort. But in the past two decades the personal injury plaintiffs’ bar has found their own ways to leverage video to obtain and support sizable awards. Chief among these is the “day in the life” video.
A day in the life video is a professionally edited collection of footage designed to show the jury the daily experience of the plaintiff in their home or other normal setting. It is used in catastrophic injury cases where the lasting effects of the harm done by the defendant intrudes on virtually every moment of a plaintiff's life. If a plaintiff’s injury means that they require assistance to feed, dress, or use the bathroom, this can be concretely demonstrated to the jury. If a plaintiff's injury requires him or her to reconfigure their home or endure lengthy painful physical therapy to restore basic function, this can be shown as well.
These videos have enormous advantages over reliance upon witness testimony or photographs to demonstrate the severity of injury. A personal injury plaintiff testifying in court is often summoning as much strength and mental fortitude as possible to appear poised and credible in his or her testimony. While this is essential, particularly during cross examination, it can make it harder for the jury to appreciate the pain and struggle that they experience in more ordinary times periods. And the truth is, people do not enjoy thinking about catastrophic injury. Plaintiffs have a difficult time testifying about injuries that make them feel weak, helpless, or incapable. And jurors do not enjoy hearing or thinking about such things and may subconsciously downplay the extent of a plaintiff’s suffering in their minds, either as a result of tort reform conditioning or as a way of avoiding a reality that they would rather not think about.
But video evidence can cut past these biases and demonstrate truths about a plaintiff's lived experience that nobody, even the plaintiff, wants to face. The videos can also humanize plaintiffs in a way that is rare in the courtroom. Seeing a person in their home, interacting with members of their family is a much more normal way to meet them than watching their testimony on the witness stand. Even plaintiffs who might present as cold or anxious in court can come across sympathetically in the more normal setting that day in the life videos depict.
Putting together an effective video is fairly outside the skill set of most lawyers, even those of us who do our own visual aids and PowerPoints for trial. Because of this, there are a number of video production companies that specialize in shooting and editing day in the life videos. Like any trial consultant, you have to choose carefully and there are advantages to selecting an experienced vendor who is familiar with how folks respond to video in a courtroom and the evidentiary pitfalls that can arise when preparing such an exhibit.
As you would expect, defendants are rarely pleased by the prospect of a day in the life video and will typically make some efforts to prevent its introduction. The usual objections are that a video is misleading—that the activities and events depicted are not typical. This can sometimes result in portions of a video being excluded but is rarely a complete bar to admission unless someone has taken major artistic license with the facts. Even in notoriously stodgy courts like the Southern District of New York, there is authority for day in the life videos being shown to the jury, though they are often restricted to the damages phase of trial to further guard against potential prejudice. [1] As with other trial demonstratives, flexibility is crucial—if the court directs that a portion of the tape be removed you want to ensure both that it physically can be done and that the rest of the video still makes sense without 100% of its parts.
This modular flexibility can also be a boon if the day in the life video is also to be used for settlement purposes. Because of the emotionally powerful nature of day in the life of films, many attorneys will bring them to pretrial mediation in the hopes of showing the other side what they're in for at trial. This can work, and unlike trial there are no restrictions on what you can put in a video for a mediation. So even if a judge might think that parts of your video are over the top, unfair, or emotionally manipulative, if you think that it will rattle the other side you can include it for settlement.
Day in the life videos aren't suitable for every case. Some plaintiffs don't have an obvious ongoing impact that translates well to film. And the videos can be costly to produce, making them unsuitable for small value cases. But there are powerful tool for catastrophic injury plaintiffs and their use highlights a deeper concept applicable to every trial lawyer. There are endless numbers of ways to present information to a jury and an effective lawyer is always in the market for a new tool for making his or her client's position more relatable, more credible, or more personable to the folks in the courtroom with the power to actually do something about it. The jury.
[1] See, e.g., Colon ex rel Molina v. BIC USA, Inc., 199 F.Supp. 2d 53, 99 (S.D.N.Y 2001).
