ILNews

Settlement documentaries can be persuasive tool

Dave Stafford
July 18, 2012
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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.”•

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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