We have found that in addition to photos and demonstratives, video can be a crucial, sometimes game-changing piece of evidence. Therefore, it is crucial to test the impact, positive or negative, of this material when evaluating a case prior to mediation and trial.
As underscored in a recent AP article titled “Video dominates trial in George Floyd’s death,” video footage – including body cams, surveillance footage and video taken by bystanders with their phones – is one of the most important elements in that legal proceeding. In fact, during the first few minutes of Derek Chauvin’s trial, the prosecutor played video for the jury, properly setting the stage for what they would be asked to focus on when arriving at a verdict.
During recent focus groups, one of the most striking findings was the effect that a 40-second Day in the Life video snippet had on the discussions. Jurors were already sympathetic to the plaintiff’s cerebral palsy-related deficits after reading the Case Summary, and the brief clip of the child struggling to communicate and interact with his caretakers had a palpable effect on their opinions of the case – as well as their definition of “reasonable” damages. As one participant articulated, “That changes everything. I’m with the plaintiff on this one… Looking at the child, he’s obviously suffering. I’m totally with the plaintiff, and I understand their perspective.”
Other respondents expressed that seeing the child suddenly “made things real,” creating a stark contrast between the opinions they formed after simply reading about his injuries, versus those shaped by actually seeing him on video. As one juror tearfully explained, “[The video] makes it much more real and concrete than reading about what his life might be like and the care he needs. It has a larger impact on me when I see it visually. My award just probably doubled.”
So what happens if a Day in the Life video doesn’t exist or isn’t available for focus groups? We have found that Facebook and other social media platforms can sometimes be good resources for finding footage to play during jury research. Especially when evaluating damages, providing as much context as possible about an injured party’s condition is paramount, and even a brief amount of “day-to-day” footage – even captured with an iPhone – is enough to gauge its effect on juror sympathy. It is worth noting that in some cases, participants tell us that an injured party “looked better” in the video than they were expecting, further highlighting the importance of testing this footage.
The same goes for presenting video from key witness depositions. Although we always strongly recommend recording depositions on video, we understand this is not always feasible and that sometimes depositions are completed long before focus groups are even considered. In these situations we like to point out that one of the good things about COVID has been the rapid adoption of Zoom and other video conferencing apps, which allow counsel to more easily reach witnesses and conduct quick “faux depos” – all without getting on a plane or consuming an entire day. Even though these mock cross-examinations are not official depositions, focus group jurors still appreciate being able to see the witnesses and evaluate their credibility and effectiveness based on their facial expressions and demeanor.
Regardless of the type of case, video can be a highly effective way to provide important context. For example, in a recent case involving a patient who claimed caregivers ignored her cries for help and alarms from her monitors, counsel went to the hospital and filmed the area outside the patient’s room, which showed just how close the nurse’s station was. Based on this footage, the majority of jurors insisted someone would have heard the patient or the alarms. Also, in a product liability case involving highly specialized equipment, video was crucial in helping jurors to understand how the machinery operated and what both sides were specifically claiming. Furthermore, if you have different versions of videos or animations and want to know which are the most effective, or need input on what changes will make them more understandable, focus group research is the perfect venue.
The bottom line is that presenting video can be an incredibly important way to properly evaluate the strengths and weaknesses of a lawsuit, and there are creative ways to obtain it for research purposes even if discovery has already been completed.
If you want to evaluate a case, test key witnesses or learn more about your trial venue, please contact Partner/Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help.
