ILNews

Settlement documentaries can be persuasive tool

Dave Stafford
July 18, 2012
Back to TopCommentsE-mailPrintBookmark and Share

Carolyn Dudley’s husband, Indiana State Trooper Gary Dudley, was killed six years ago when he was struck by a freight truck during a charity bike ride in Vermillion County.

A short video about his life, and the event that caused his death, was critical to winning a settlement in a wrongful death case against the trucking company.

“I think it was a huge help to us,” Dudley said in an interview. “It brought my husband to life for a few minutes to let potential jurors and attorneys see who he was.”

Attorneys representing clients in wrongful death and severe personal injury cases often find that video is the key to reaching a settlement.

For more than two decades, settlement video brochures – short documentaries used to demonstrate and personalize claims for damages – have been a tool to litigate cases where an alleged loss is great.

“I use them quite frequently,” said David Craig, a partner with Craig Kelley & Faultless LLC in Indianapolis who represents plaintiffs in trucking and commercial vehicle personal injury and wrongful death lawsuits. “I think there’s no better way to show the other side the value of a case than actually showing it to them.”

Settlement videos do that, often in powerful ways. A video in a wrongful death case, for instance, might include interviews with event witnesses, police, family members, character witnesses and others. Personal injury videos might include statements from medical experts and “slice of life” evidence regarding how a claimant’s life has been changed by the event that’s the subject of the suit.
 

il-documentary02-15col.jpg Image Resources Inc. President Dave Fulton, center, stages a mock settlement video shoot with his son, Chris, as producer Jori Weber runs the camera. Fulton started the company in 1994 and has made videos for cases in almost every state. (IL Photo/ Perry Reichanadter)

In cases where claims for damages could be $1 million or more, Craig said, “I can’t imagine not using” a settlement video.

Craig said his firm’s in-house staff does some videos, but the work sometimes is farmed out to professionals, usually dictated by the demand for damages.

Roy Tabor of the Tabor Law Firm LLP in Indianapolis won a multimillion-dollar settlement representing Dudley. Tabor said settlement videos are widely used because they are effective and illustrate loss, and they clue defendants to not just the nature of the claim, but also the credibility of potential witnesses.

“In wrongful death cases, or serious burn injury cases, or cases involving brain injury or very, very serious injury, there’s not a substitute for spending a day and going through a day in the life of what the injured party goes through and what the survivors are going through,” Tabor said.

“It’s a very effective way to depict intangible losses – love and affection, enjoyment of life,” Tabor said.

“It’s what a jury is going to see” if a case proceeds to trial, he said.

Tabor also won a multimillion-dollar settlement representing the estate of fallen Indiana State Trooper Andy Winzenread, who was struck by a truck and killed in 1997 as he helped a motorist pulled off to the side of an interstate.

“The big thing is, when the case is going on, it all seems to be happening so fast,” said Cindy Winzenread, widow of Andy Winzenread. “Everything’s kind of in a fog. (The video) brings it all back together.”

Producing a niche

Dave Fulton is president of Indianapolis-based Image Resources Inc., one of a handful of companies around the country focusing on producing settlement videos. He said the goal with each project is to produce a “60 Minutes”-quality presentation.

“We’ve built up a clientele pretty much coast to coast,” Fulton said. Since the company began in 1994, he estimated it’s done 800 to 900 settlement videos for cases in almost every state. His company produced the settlement videos in the Dudley and Winzenread cases.

“One thing we take great pride in is all of our documentaries are authentic,” he said, noting that interviews are unrehearsed and people on camera are not coached.

“The words they’re saying are sincere, not canned; it’s not something that’s scripted. I don’t think any other medium besides video can capture that,” he said.

Fulton followed an early love of video to a TV/radio degree from Ball State University. He later worked in the attorney general’s office for a time before finding a niche where he could combine both areas of expertise.

“I decided to start my own company based on the needs of law firms,” he said. “I dovetailed that with my experience working with attorneys at the attorney general’s office.”

The company now employs three full-time and several part-time and contract employees.

Image Resources’ clients are typically those in which a potential award for damages is great, Fulton said. The company charges an upfront fee developed from a proposal, and Fulton said the cost for most settlement videos ranges from about $5,000 to $15,000, based on estimated shooting and editing time, complexity, travel and other factors.

A unifying feature of the videos he produces is plaintiffs whose cases are compelling.

“It would be very rare and unusual for us to get a project about a plaintiff whose injuries were not profound and severe,” he said. “And likewise, from a liability standpoint, the preponderance of the evidence points to the defendants.”

Framing the case

Video producers and attorneys who rely on settlement videos say they help the defense understand the case and can help expedite settlement.

Defense attorney Thomas Farrell said that’s true in some cases, but not always.

“A lot of it depends on timing. If you’ve already spent two years, which is the amount of time you might spend litigating a wrongful death case, often you don’t learn that much new from a settlement video,” Farrell said. “In my experience, they probably are more helpful at the front end than they are after you’ve already spent many, many hours working a case over a couple of years.”

The disposition of the defense toward possible settlement also likely outweighs the impact of a settlement video, he added.

An attorney at Scopelitis Garvin Light Hanson & Feary P.C. in Indianapolis, Farrell’s representation concentrates on defending trucking and commercial driving enterprises, mostly in catastrophic accidents resulting in death or serious injury.

He’s seen numerous settlement videos and said the range of quality is broad.

When a settlement video is presented, he said, “I go into it with an open mind, and I think having seen a lot of them, there is some historical reference that some of them are pretty overdone sometimes, but I try not to let that influence how I’m going to look at the one that’s just shown up.”

Particularly in wrongful death cases, Farrell said, plaintiffs and defendants must be genuine. A settlement video that lacks that, he said, could be counterproductive and raise more questions than it answers.

“They often try to tug pretty hard at the heartstrings. That’s not all bad, but that can’t be your entire perspective,” he said.

Whether or not a video helps lead toward a settlement, Farrell said it may inform the defense about what the potential exposure could ultimately be.

In the case involving her husband’s death, Dudley believes the settlement video helped expedite a settlement with Towne Air Freight. “I think it had a huge impact on that,” she said. “We did a mock trial and presented evidence and then the video at the end, and all of them said it had a huge effect.”

Perhaps an unintended consequence – the videos sometimes stand as a tribute. Winzenread said the video has helped her daughter, who was 1 month old at the time of her father’s death, find answers.

Dudley still has a copy of her settlement video, too.

“Parts of it are difficult to watch,” she said, “but most of it is good.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  2. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

  3. From the article's fourth paragraph: "Her work underscores the blurry lines in Russia between the government and businesses . . ." Obviously, the author of this piece doesn't pay much attention to the "blurry lines" between government and businesses that exist in the United States. And I'm not talking only about Trump's alleged conflicts of interest. When lobbyists for major industries (pharmaceutical, petroleum, insurance, etc) have greater access to this country's elected representatives than do everyday individuals (i.e., voters), then I would say that the lines between government and business in the United States are just as blurry, if not more so, than in Russia.

  4. For some strange reason this story, like many on this ezine that question the powerful, seems to have been released in two formats. Prior format here: http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263 That observed, I must note that it is quite refreshing that denizens of the great unwashed (like me) can be allowed to openly question powerful elitists at ICE MILLER who are on the public dole like Selby. Kudos to those at this ezine who understand that they cannot be mere lapdogs to the powerful and corrupt, lest freedom bleed out. If you wonder why the Senator resisted Selby, consider reading the comments here for a theory: http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263

  5. Why is it a crisis that people want to protect their rights themselves? The courts have a huge bias against people appearing on their own behalf and these judges and lawyers will face their maker one day and answer for their actions.

ADVERTISEMENT