Day-in-the-Life Video Production in Life Care Planning
Moving Visuals Move People . . . Especially if One Can Also Hear What’s Moving
In this author’s opinion, the day-in-the-life video can be one of an attorney’s most effective tools to substantiate a client’s injury, demonstrate ongoing difficulty, and put a name and a face on a case number. It is a legitimate opportunity to show what must be shown in a way that protects a client’s dignity. Furthermore, videos can assert admiration in place of pity or misunderstanding, and can educate the viewer about very real circumstances in ways verbal or print communication rarely can. Indeed, video productions portray the essence of the client . . . within a reasonable amount of time, in order to convey the message.
But it is not a cookie-cutter task, is rarely completed in a day, and some of the creative and emotional elements most people may believe would be the content of such a video just will not fly. Some content might just get thrown out if over the prejudicial line, so it is best to know where not to go, and then to not even go there. But first, one needs to know where to go, by determining the priorities necessary to be in the content. The single, most important planning tool to help accomplish this goal is a good life care plan.
After a number of years as a news feature reporter/producer/editor at a “#1-in-the-market” network affiliate television station, and after a couple of subsequent private sector years in the video business, mostly doing productions for ad agencies and businesses, I received my first opportunity to do a day-in-the-life video in 1984. I did not know the attorney at the time, but for some reason he believed I was the guy to call, and ever since then, it has been an evolving, fine-tuning mainstay of our company that is taken very seriously . . . because it truly matters to somebody. Many other attorneys have increasingly called upon our company over the years to provide this service, and each product is usually an improvement over the last. These demonstrative exhibits are considerably better when a life care planner is involved at the outset, but at the time of my initial assignment, I did not even know what a life care planner was. It was totally new territory, and there was much to learn in order to be credible.
Sharing some of that first experience may be a useful introduction for this post, because it is unforgettable. And I may be the only person who watched all of it, as many cases settle before the visuals are even put together. However, if the visuals are there, reality can be preserved in the event it is needed, and it is good to be prepared ahead of time. You may only get one take.
This first client was almost 300 miles away, in the middle of nowhere, and our work involved documenting the end result of an elderly minister’s having been robbed and shot through his neck as he and his wife stopped to spend the night in a motel, on their way for him to preach in a revival in yet another state. He was medically unable to travel for court appearances in the resulting civil and criminal actions in another state’s jurisdiction, due to his spinal injury and the resulting complications.
The Height of Bad Things Happening to Good People
Yes, we had a location light kit . . . we had a fine broadcast camera . . . and there was enough feature work experience to know something about doing a “warm and fuzzy” video in somebody’s home. But there was much more to consider, and many of the creative things learned in the TV and ad business needed to be cast aside, because everything was potentially discoverable. In that planning process, there was the need to learn about the myriad of health care necessities that should be included in this video, in order to help a jury understand the difficulty and resulting expense. It had to be videotaped and later assembled in a way that made sense for the viewer . . . eventually consistent with somebody’s live testimony. Writing a voiceover and presenting a self-contained narrated video in court was not an option. These visuals needed to substantiate testimony we did not yet have.
In producing day-in-the-life videos, nothing is staged. It is not necessary to stage, because the action is real. We did the location work, we got different angles, and we observed the client eating, taking his meds, the architectural modifications, therapy, the whole nine yards. I thought we had completed the important part, and was personally moved that nobody was angry, especially under the circumstances. The client and his family had already dealt with that, and all their energy was devoted to day-to-day survival. Our being there made our client’s day even more exhausting and difficult. Concentration fatigue was very real, as everyone was working together to find solutions in dealing with this tragedy, and to set up specific shots in a way that made sense to a viewer who could not be there. In producing this video, at the time, there really was not an established standard or known precedent for reference. We found ourselves helping to set that standard as we developed the day-in-the-life video.
The next day was a secondary reason to justify the trip from my perspective, as it was not part of the day-in-the-life production. It was a simple video deposition at bedside to get our client’s sworn de bene esse testimony for the criminal case. Both the public defender and prosecutor were present with the securely transported accused gunman, in order for him to be identified face-to- face as the assailant. This was simple, yet uneasy. Three attorneys, a court reporter with equipment, a videographer with more equipment, a handcuffed defendant, and yes . . . the client, bedside in a double-wide, with an added-on wheelchair-accessible bathroom.
After identifying the party who fired the shot that permanently disabled the client . . . a procedural necessity . . . the client did the sort of thing that makes a lawyer cringe when a client does such things: he forgave the man who shot him, right there on the spot . . . and on video.
No, he did not condone the action . . . there was no let-him-go-free mentality . . . but in this gentleman’s pain, suffering, and permanently life-altering consequences, he freed himself of a burden . . . and likely cleared the way to get on with it for everybody. He also injected a strong dose of humanity in this procedural exercise. This client was Number One. Unforgettable.
Now it is not really known what settled the case, but in this first day-in-the-life, with no real guide to follow in the process, although the video work was an important process, it was not as important as the reality of this client. And in this case, the video was never needed to be used.
Admiration . . . Not Pity
In preparing a day-in-the-life video, the client’s best interests are the first priority. The client should never be made an emotional star in an exciting, flashy video. In my opinion, after doing this work for 25 years, flashy is not good, and totally unnecessary. The work should credibly show what is really there. And to be credible, staging is unnecessary. Give the viewer the opportunity to be smart . . . and FEEL what is really there, without messing with it to attempt to create a picture.
But that does not mean we should go with the flow with no planning. It does not mean don’t move some furniture. And it does not mean no tripod, no lighting, and a quick overview with an attorney’s son’s consumer camera, because it seems so easy when first discussed elsewhere.
When asked to produce a day-in-the-life video, especially if the initiating attorney has never retained a professional to complete one (or, occasionally, has never actually even seen one), is to get on the same terminology page. Make sure what we think we’re being asked to do is what the attorney really wants. For example, one may be asked to do a day-in-the-life video in a wrongful death case . . . and obviously, the client is no longer among the living. One may be asked to do a day-in-the-life video as if it were for trial, when it is really needed very quickly for a mediation just scheduled. Or the day-in-the-life term may be used to indicate settlement documentary . . . meaning one can more flexibly use music, photographs, unsworn interviews, and other demonstrative media to make it more interesting and credibly self-contained. The end use is usually a matter of editing. The day-in-the-life location work with the client is essentially the same, and ideally the videographer will be capturing credible visuals that can be used in many ways. The original location video can be the source media for a brief mediation visual, a segment in a settlement documentary, and/or a trial exhibit. Finding out what the attorney means procedurally can be more important than what the videographer is first told. And one must ask. One must ask specific visual questions that address what can realistically be covered in a video, and that can vary between legal processes and different jurisdictions.
When I am asked to produce a day-in-the-life video, the first question out of my mouth is “Do you have a life care plan?” In my opinion, the life care plan is the single most important
startup tool for day-in-the-life video work, for without it you run the risk of missing the most important aspects of the client’s life. It may be wise to actually delay location work until a life care planner becomes involved, even if there is not a finished plan in time to meet the video deadline. The videographer can at least have some significant recommendations, a draft, or an outline from the life care planner with which to organize priorities. In the event a life care plan has not yet been drafted, at a minimum a telephone conference call can be a useful alternative in order to assess the life care planner’s impressions and recommendations. This, of course, presumes that the life care planner has already met with the client and conducted at least an initial evaluation and assessment. An exception, of course, is if there is a need to document present reality, in anticipation of changes in condition before a life care planner is able to become involved.
Regardless of the tips and recommendations provided in this post, a day-in-the-life video is not a cookie-cutter project, and at this point there is no known, accredited, specific higher education course or templates on the Internet to tell the reader everything to consider when working on such a video. What we have at the time of this writing are some basic acceptable standards and precedents to make sure the work is likely to be admitted in court, so it does not become a useless, expensive exercise in frustration. There are numerous, sometimes conflicting, court rulings on admissibility, and these standards vary from state to state. Therefore, we will not reference specific rulings for purposes of this postr. Instead, we will paint this post with a broad brush by stating some parametric considerations, and, along the way, offering some practical thoughts as to how to make it happen in the real world based on our experiences.
Basically, key consideration goals are as follows:
■ Nonprejudicial portrayal
■ Accurate portrayal
Within those goals, it is helpful to establish a chronology, including:
■ Baseline: normal life prior to life-changing event
■ Event: visuals that can substantiate or transition to the present
■ Reality: present-day life care visuals
■ Conclusion: the final thought that summarizes the effects of the event
The baseline may be the most overlooked opportunity to make a day-in-the-life video effective. In order to show what a client has lost, establishing what they had to lose is key to making it real. For example, if the client was a computer technician, excelled in his work, got along with everybody, and made his boss a lot of money, with the resulting personal earning capacity. . . . and then a head injury impaired his ability to do the computer work, and also took away the most important purpose and enjoyment of everyday life. . . . Some qualified expert can write that conclusion in a report or testify to damages, like a college professor.
But wouldn’t it be more effective to the jury pool, or a mediator, if you had pictures of the client working on computers? Better yet, some home, training, or corporate video, where one could also hear how swiftly he moved a keyboard, and possibly articulated expertise. He may look the same, and may even present quite normally. But a cognitive decline can be communicated much better if there is a baseline for comparison. Credentials, certificates, accepting performance
awards, along with economic information can also visually help establish not only where the client was, but project where he would likely be now without the difficulty, and where he could have been expected to progress in the future.
The event may need to be communicated through testimony or documents, but production of a day-in-the-life is an opportunity to make that event more real with TV news reports one can hope the attorney or client has obtained. This can be very effective in mediation, and can possibly have some limited use in trial. If the event was an accident and had some media coverage, these may be some of the most useful visuals one has. But often they are not just a phone call away.
In order to have access to this footage, an attorney may need a subpoena to obtain it, if indeed it was even archived. Most news operations will require a subpoena to protect themselves, plus reasonable fees for their time to run it down and produce it. However, it is unlikely that the attorney will be able to get anything that did not air or was not published. Original footage, even if saved, will be procedurally difficult to obtain, even with a subpoena. Pushing for unedited footage that did not air may not be worth the risk of delaying production of aired video, which can be reviewed and used. In any event, the source should be properly credited with a brief graphic when used, if there is not already a station ID superimposed on the material.
Reality started after the event, and the videographer or editor may have become involved months or years into the process. Although family members have been stressed out for a long time while dealing with their new reality, some may have had the presence of mind to videotape coming home from the hospital, or some of the earlier days of recovery. Although the quality may not be as good as one would want, a few well-selected seconds can be a big help in substantiating real difficulty in the passing of time. That is something that may need to be requested repeatedly, and it is a good idea to inquire about videos that may be in the possession of friends. Still photographs are better than nothing, but moving video also gives the viewer ambient audio, and audio is often the foundation for feeling what is seen.
Another source of visuals, in addition to family members, is rehabilitation. Many rehabilitation facilities routinely videotape progress for such functions as walking, and, with the help of the attorney, that can probably be obtained. This adds to the chronology.
It is now timely to address some of the day-in-the-life production that the reader may have thought was all there was to this process. But hopefully, after absorbing this post up to this point it is apparent there is more to a successful video than perhaps was first thought. Here are some suggestions in checklist form:
■ This may sound self-serving on the part of the writer, but it is not a good idea for an attorney to hire a cousin, child, or neighbor to do this work, unless they are experienced. Neither should it be assumed that somebody who shoots sports or weddings is a good choice without some help. A National Court Reporters Association (NCRA) Certified Legal Video Specialist (see www.ncraonline .org) experienced in legal work beyond depositions should be a minimum requirement. And, if he or she has a broadcast television news background, that is even better. That person will know what a deadline is, and is less likely to accumulate more material than you can manage. Long is not good.
■ There should be at least two people involved on site, regardless of how the responsibilities are divided. The videographer needs to be able to totally concentrate on what is being documented, and another party should be producing . . . by anticipating what is next, and dealing with family or other caregivers. The target is always moving, and the content being documented may be discoverable. Plus, there are some medical or rehabilitation procedures that must be captured correctly in one take.
■ No home video, except archives from family. Day-in-the-life work should be produced with professional equipment by experienced professionals. Minimal camera requirements should be 3-Chip Broadcast or Industrial Camera, with at least a 10:1, preferably a greater, ratio optical lens. While some cameras have digital zoom capabilities, they can create artifacts that can distract from the closer shots that require a zoom ratio in the first place. Also, digital zooms are difficult to accomplish smoothly.
■ Professional lighting is a must in order to assure normal skin tones in mixed- or low-light environments. It may not be needed for every element, but it should be available with the expertise to use it. If a potential videographer says he does not have lighting because he does not need it, call someone else who is willing to work harder to get it right, because this is probably the most important video in the client’s life. Simply bouncing a light off the ceiling does not change reality, yet it may help eliminate color temperature discrepancies that detract. Remember, day-in-the-life videos are competing for an attention span with million-dollar- an-hour television programming that comes into everybody’s home, every day. Keeping it clean and natural does make a difference, even if the viewer does not think about it. If the end result is natural, one does not have to make excuses for it or think about it.
■ The production professionals may be told “No sound.” That is not what it means. The intended meaning is likely no narration, or don’t have the client or the caregiver stand there and explain what they are doing because it likely cannot be used in court that way. Do record natural sound at all times, and make sure the levels are not too hot (audio recording where microphone volume is set too high), or on auto. This is especially important with the newer digital cameras, for the equipment is less forgiving than analog when levels are too high. Distortion occurs more easily, and it cannot be fixed later. To be safe, audio levels should peak no higher than 12 dB, and one needs a camera with VU Meters in order to visually monitor audio levels. Good audio gives visuals presence. The viewer should hear machinery, somebody brushing her teeth, and a crutch hitting the floor if the client accidentally drops it. The crew should advise everybody that natural sound is being recorded, so unnecessary commentary is not taped. Always be aware that original footage may have to be produced to the other side.
■ Whoever does day-in-the-life work should also be an experienced editor, and the attorney should see examples of his or her work before assuming competence. Reading magazines and knowing the language of the business are not good enough for what probably is the most important video in someone’s life. A good editor is more likely to be on the lookout for what matters in the field. Be aware that editing is not cutting things out as much as it is putting in material that tells a story in a way that makes sense to and captivates the viewer. Editing is everything when there are hours of material and an under-20-minute attention span. The importance of a talented, competent editor throughout the entire process cannot be understated. And everything that goes into editing should be time budgeted at about 2 hours per finished minute. This is not a process to be rushed.
■ The location video process will be very tiring for a client. Those involved should be advised up front that eating, bathing, and other forms of caregiving may take three times as long as the usual painstakingly long time.
■ Since this process is tiring for the client, restful downtime should be built into the anticipated schedule. It always takes longer than anticipated.
■ Find something fun. Even though the situation at hand may be very sad, videos are works within an entertainment medium. If all the content is horrific, it is a tune out. The production crew should find and plan something fun that the client can do for enjoyment of life, and take
advantage of any light moments to contrast and balance the negatives. This will humanize the end product, will allow the viewer to relate, and may be one of the more beneficial things anybody does for the client’s feelings.
■ After obtaining permission to speak directly with the client or caregiver, establishing a trusting relationship is important. While the client may have been through years of personal intrusion . . . and while one may be very familiar with a video process . . . coming into someone’s home or facility with a camera, equipment, and unknown people is a very big, potentially stressful event. It is not unlike going to court for the first time. Making people comfortable, and helping them understand that they do not have to clean up for company, can go a long way to pave the way to success. That may be complicated by a requirement in some jurisdictions that the other side be notified and allowed to be present. Fortunately, most judges do not consider day-in-the-life videotaping to be an inspection, and the intrusion of opposing counsel can usually be avoided. The intrusion of too many people is especially difficult if the client is in a hospital or nursing home (see next point).
■ Day-in-the-life location work in a facility means numerous hurdles to proactively overcome before the production crew arrives. Not only is the client likely to be confined to one room, possibly semiprivate, but also access to even the least cramped of facilities can be a challenge. One cannot assume that because some family member said some nurse said it was okay for you to come make a video that it is okay to appear with your equipment when it suits the family. Regardless of whether it is a public or a private facility, there is likely an administrator who must run it by risk management, and risk management may be halfway across the country, if not on vacation. If the professional waits until the last minute to cross that bridge, the easiest immediate answer from risk management is always no, so in the process of asking for access, it is sometimes helpful to assert at the outset that (ideally) the facility is not a defendant, and the production crew is part of the process to obtain funding for care. Before being told that other residents or patients cannot be included, the facility should be informed that residents or patients will not be recorded. In fact, some facilities may prohibit including the participation of caregivers employed by the facility.
■ Visuals should not be limited to someone lying still in a bed, as feeding, bathing, therapy, and other forms of care need to be part of the story. So if videotaping employees is not feasible, perhaps family members or independent caregivers or therapists can be available. In any event, releases should be executed for each person appearing on camera, including family members.
■ If facility access is problematic, an additional persuasion one may offer (with consent of the client’s attorney) is to provide the facility with a “time code window” copy of all the video shot in the facility for their review prior to editing. This may need to be produced for the other side anyway, so proactively making it available to the facility should not be a problem. It then becomes a simple matter for those in charge of the facility to confirm for their records that the footage is within reason, and if there is anything in doubt, they can advise in writing, referencing the on-screen numbers. It is probable that the attorney will not want to use any potential problem segment(s) anyway, so this process should be a positive exercise to accomplish what is needed. The writer has found that suggesting this safeguard, with consent of counsel, is useful in totally lowering the facility’s shield. Most administrators truly want to help their patients . . . they just need to make sure their facility is protected, and that the video crew is not 60 Minutes doing a hidden camera story on their type of facility. And if one ever needs to go back to the same facility in another case, trust is already established, and the process is made a lot smoother.
■ More than likely, a day-in-the-life video will require significant videography in the home. A site check with no camera is time well-spent to prepare the needs of the environment. If the videographer has come a long distance, perhaps a visit on the day of arrival, with no equipment, will break the ice and lower the shield of anxiety. It is a good opportunity to bond with the family by listening to their story first, and then showing them a cleared example of some of the professional’s work product. Providing an example not only lowers anxiety and creates confidence, but also opens a dialogue for practical suggestions to plan your location work. Then the crew can hit the ground running the next day, after anxieties are cleared and, hopefully, everyone has had a good night’s rest. That’s right . . . tell them to go to bed early.
■ The site check also is a good time to plan the order of visuals and solicit the caregiver’s input as to unique circumstances that might be important to know. One might plan a purpose for dressing by also planning a place to go, such as a doctor’s office, the grocery store, bowling alley, church, or wherever the client may actually go or enjoy going. This gives purpose for getting dressed and going out the door, and the documented arrival somewhere else does not necessarily have to be the same day. Under those circumstances, it is wise to plan for continuity by suggesting that the same outfit be worn each day.
■ If a doctor visit or therapy appointment can be or is scheduled during the location work, that is yet another opportunity for a practical visual. Like any health care facility, getting clearance up front is a must, and the attorney or paralegal may be able to cut through the procedural red tape before the shoot. Again, if the client says the doctor will say it is okay, that does not necessarily mean it is okay. If permission is obtained ahead of time, that doctor or therapy visit is a great opportunity to substantiate how much difficulty the client has in accomplishing more basics than most people even need to consider. On-camera releases are still a must.
■ If the field trip opportunity the client was dressed for is the grocery store, one may also need to obtain permission for interior location work. Frankly, it may not even be necessary to go inside a store. Getting in and out of a vehicle in the parking lot may sufficiently make the point.
■ Most of what has been addressed to this point is active and moving. But the videographer with a good eye will also obtain visuals of the client doing nothing, possibly resting, possibly bored, possibly helpless. That is part of the day as well, and when that moment comes, a good videographer will know it, and will not need to stage it. Also throughout the process, there should be cutaways. Close-ups of medications, health care supplies, wipes, tubes, and machinery may have their place as visuals later in the edit. If there is a special bed, it is an expensive piece of equipment to document and justify. While it is tempting to want to show a lot of emotion, tight shots of extreme facial grimacing, too many noises, and anything that may be interpreted as overly dramatic should be avoided. If it is there, it’s there, and one will know it without having to create it. The expectation is admiration, not pity.
■ The videographer with a good eye and a heart will also be thinking about what a client can do, or perhaps can do with difficulty. For example, the client with carpal tunnel syndrome may have difficulty opening a jar, but should be given the opportunity to open one, possibly with some help. Hugging children or grandchildren, or the inability to hug children or grandchildren, are visuals worth the effort. Not staged. . . . Natural . . . they know how to do it . . . or try to do it as best they can.
This subject could have endless pages of different stories and situations, along with specific visuals that make the point. But since this is not a cookie-cutter process, a good videographer or editor will know what works without a checklist. However, there is also a need to be mindful of the legal process and what is within the bounds of those first priorities.
■ Authentication: Make sure the party who did the work, or participated in the work, is credible, is available, and has integrity. Make sure the visuals accurately depict reality. No conflicts of interest.
■ Relevance: Stay on point with purpose. Connect the baseline with the present situation, and relate it to the event.
■ Nonprejudicial portrayal: Prejudicial visuals are invitations for exclusion.
■ Accurate portrayal: One should not make up or stage anything. Keep it real. Real is good, and it captivates. “Just the facts” increases admissibility.
In other words, the professional retained to develop the day-in-the-life video should use good judgment, exercise appropriate restraint, and save the creative, misleading, morphing effects for political commercials.
A day-in-the-life video is about substantiating something very real to somebody, and does not need all the tricks that videographers know that they can do. But some modern-day effects are appropriate in order to protect the client’s dignity, such as fuzzing or blurring out private areas in the edit, if they must be in the shot to communicate necessary care. The client deserves integrity, the best quality, the professional’s concentration, and respect for dignity.
This type of personal yet professional work . . . documenting the difficult . . . may not be the most lucrative work one may produce, but it may very well be the most memorable and rewarding. It may or may not even be used, as the case may be resolved sooner than expected. But win or lose, one has accomplished something that truly matters, and the videographer may have done more to validate and help somebody get through a tragedy than any other professional brought into the mix, other than a caregiver. The product will have shared and seriously documented important personal time in a personal space.
So in short, how does one do a day-in-the-life video?
It should be done the way one would like someone else to do it for somebody dear to them.