Publications: Trial Tips: Day-In-The-Life Videos, Defense Perspective

“Wanna get away?” Yes, just like in the current airline commercial, the plaintiff’s presentation of a day-in-the-life video during trial is usually one of the defense lawyer’s bad days. It can make you wish you were somewhere else.

Hope is not lost, however. Defense counsel can neutralize day-in-the-life videos or, at the least, minimize its impact on the jury. Here is how in three steps: (1) Discovery; (2) Investigation and preparation; and (3) Trial presentation.

Forewarned is forearmed. In any case where a day-in–the-life film is a possibility, discovery should be designed and drafted in an effort to uncover such a film as soon as possible in the process. Discovery should also seek witnesses to the filming and/or pictures. While some states, including Illinois (Georgacopoulos v. University of Chicago Hospital, 504 N.E.2d 830 (Ill. App. 1987), have ruled that a day-in-the-life film is work product, it is still worth the effort to find out whether such filming is going on. An objection on work product grounds is a red flag that day-in-the-life preparation is ongoing. Forcing the Plaintiff to prepare a privilege log will confirm the fact of filming. And the work product privilege may be waived if the filming is done in the presence of third parties who are not consultants doing the actual filming.

Your goal is production of the out-takes. What is left on the cutting room floor is usually more valuable than what is placed in the “production.” Remember, this is a film—the producers take poetic license, attempt to dramatize certain events, and seek to present a reflection of reality. The film, however, is not reality and can be demonstrated as such at trial.

In the last case I tried using a day-in-the-life film, Plaintiff’s counsel produced two hours of filming in what later became a ten-minute day-in-the-life video. Plaintiff’s counsel’s initial tender of the day-in-the-life video was thirty minutes long. Our knowledge, from the out-takes, of what exactly had been put into the film and what left on the cutting room floor forced plaintiff’s counsel to reduce the film to around ten minutes.

Preparation and investigation is the second key to minimizing the impact of the day-in-the-life film. Since every movie critic has a different opinion of every film, you will need help here. Watch the film, by yourself, again. And again. And again. And probably some more. Enlist the help of colleagues from all levels in your office (experienced lawyers, inexperienced lawyers, legal assistants, secretaries, and others). Have them take notes. What did they like about the film? What did they not like about the film? What portions had the greatest impact? What portions did they think were “acted out?” And what portions spontaneous and genuine? The answers to these questions will provide you with your avenues of attack (a) in pretrial motions, and (b) at trial. The out-takes are a critical portion of this investigation.

The out-takes in the last day-in-the-life film case I tried (a young man who had undergone a liver transplant and bilateral above the knee amputations) revealed the following:

(a) Plaintiff dropped the towel behind the wheelchair after he dried off his hands in the bathroom. The out-takes revealed that the “towel drop” was planned. The version that made it into the film was “Take Two”;

(b) The film showed Plaintiff making two trips in his car. When he returned from the first trip, he had a shopping bag in the passenger side front seat. The Plaintiff proceeded to get out of the car, walk around the passenger side door, which was parked tightly against some bushes, to get the bag out of the car. Plaintiff then proceeded to the trunk, pulled out his wheelchair and wheeled into the house. The out-takes revealed that in “Take One” Plaintiff parked farther away from the bushes, tossed the bag on top of the car, got out and wheeled into the house without walking around the car. The director wanted him to park close to the bushes and to walk around the car. And Plaintiff admitted that he normally combined trips to save effort. In this case, the trip to the computer store was also the director’s idea to multiply the number of trips outside the house in Plaintiff’s “day-in-the-life”;

(c) The out-takes revealed that Plaintiff was able to comfortably swing the chair into the trunk on the first attempt. The film showed “take two” in which Plaintiff purposefully bounced the chair off the back of the trunk, to “show” the jury how difficult it was to get the chair in the car; and

(d) the video showed Plaintiff at his office going into the kitchen and pouring a cup of water that he carried in his teeth to his desk as he wheeled into his office. The video, however, also showed a pitcher on his desk, which he readily admitted was filled each day by one of his office assistants. Thus, the water-carrying episode was not a part of his day-in-the-life experience.

In each of these instances, the out-takes revealed quite a different story from the day-in-the-life production. Ultimately, the investigation and evaluation of the film led Plaintiff to dramatically reduce the length and factors displayed in the film, to the Defendants’ benefit.

The discovery, investigation and preparation provide you with the information necessary to make a run at minimizing the extent and duration of the day-in-the-life film or, in the alternative, minimizing other dramatic or emotional ways of demonstrating the facts portrayed in the day-in-the-life film. There are several methods of attacking the portions of the film. Keep in mind that day-in-the-life films are now a fact of life and will be admitted, in some fashion. The goal here is to limit the film, not eliminate it altogether. There are several ways to attack the admissibility of portions of the film. They are: (1) What is being displayed does not depict true day-in-the-life events; (2) the depiction is too emotional and the prejudice outweighs probative impact; and (3) the film is cumulative of other evidence to be presented.

In our case, the tendered day-in-the-life film was 30 minutes long. The film began with emotional music and a review of close to a dozen pictures of the Plaintiff prior to the injury, with healthy legs. The music then fades and the pictures cut away to a picture of two stumps. In the film, the Plaintiff stages the towel drop in the bathroom. He washes his hands in the morning and shows his visibly grimy hands from the use of the wheelchair wheels. He takes the extra trip out of the house. He chooses the most difficult way to get the office supply bag out of the car. He talks during the film in the manner of testimony to the jury with regard to how difficult these things are. He utters visible groans and grunts as he walks and moves up and down stairs. As he goes to bed at night, the director’s voice is audibly heard to whisper “just move the urinal.” A urinal is not in the picture until the Plaintiff moves it closer to his bedside.

We moved to bar the use of the music and the still pictures as an appeal to sympathy and more prejudicial than probative. We moved to bar the showing of the dirty hands upon getting out of bed because out-takes showed that actual washing of the hands did not occur until Plaintiff had left the house not once, but twice and gone to work and the filming was actually taken at the end of the day, not the beginning of the day. We moved to bar the towel drop based on the fact that it was take two and that the Plaintiff had dropped pills and pencils during the course of out-takes demonstrating that the towel drop was staged and directed, not an accurate depiction of his daily life. We moved to eliminate the audio portion showing Plaintiff’s testimony and his audible grunts and sighs and groans. We moved to bar a portion of the film showing the Plaintiff choosing the most difficult way to remove a bag from the automobile and we moved to bar the display of the urinal at the bedside.

In response, Plaintiff cut the film down from 30 minutes to 15 minutes rather than respond to our motion. He claimed he had cured all the objections. We then removed to limit the film further because he did not remove all the objectionable material and, further moved to eliminate the graphic depiction of him removing his prostheses. Plaintiff cut the film further, to about 11 minutes.

Plaintiff removed the opening scene of music and pictures, the audio portion and the grimy hands portrayed at the beginning of the day (which was actually the end of the day). Focus on the other questionable tactics was dramatically reduced.

The trial approach to cross-examining the Plaintiff regarding his day-in-the-life film should be appropriately low key. This is not a time to attack or accuse. Rather, it is an opportunity to present the film as it should be viewed, as a dramatized depiction rather than an actual filming of real life. Plaintiff admitted that the towel drop scene was retaken, that he had dropped other things at the direction of the producer, that he normally did not take two trips outside the house in a single day so as to be efficient and conserve energy, and that his office staff went out of its way to assist him at the office, including supplying him with a pitcher of water every morning and refilling it as necessary. Plaintiff also admitted that it was only on a rare occasion that he is not able to swing his wheelchair into the trunk on one attempt and that the depiction of him being unable to do so was done at the suggestion of the producer and intended to depict how it “might” be difficult at times. Plaintiff admitted that his lawyers were present and gave direction throughout the filming.

There was no need to make any further mention of the film either through the testimony of others or on closing argument. The film was a dramatization and the Plaintiff was only doing what his lawyer told him to do. There was no need, nor any legitimate reason, to make any attack on the integrity or credibility of the Plaintiff for engaging in such a film. The cross-examination revealed the limitations of the film as an actual depiction of the Plaintiff’s real life, without attacking the plaintiff or threatening his dignity.

Fortunately for the defense, the Plaintiffs’ lawyer was no David Deehl. The actual depiction was still emotional, although less so than the initial proffer. While the film still had emotional moments, the Defense team did not experience that “Wanna get away?” feeling. While the Defense had better days during the trial, the negative impact of the day-in-the-life film was minimized. The Defense team did not need to leave town, and, ultimately, prevailed.

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