Bill Buckley`s business cards read: ”One picture is worth a thousand words.”
But how about a few million dollars? That`s what plaintiffs` attorneys hope for when they commission Buckley, a Connecticut documentary filmmaker, to make a ”day-in-the-life” videotape. Documentary tapes are now frequently part of the heavy artillery on the plaintiff`s side of high-stakes
professional liability claims or accident cases involving major disability.
Slip one into a video cassette player and it`s easy to see why. An attendant brushes the teeth of a brain-damaged young man. A ”bad baby”-the grim slang in liability circles for an infant born with a severe disability-struggles to take a single step.
Many of the tapes are strong documentation for unarguably tragic lives. They can be a trump card for plaintiffs` attorneys in cases in which juries must gauge the subjective value of pain and suffering or the quality of life lost, and in which awards can run into the millions of dollars.
Yet Buckley says that more than 80 percent of the tapes his company, B&B Enterprises, makes for its legal clients never appear in a courtroom. The tapes most often are shown to respondent attorneys and insurance company adjustors during settlement conferences.
Steve Stimel is vice president for claims at the Medical Insurance Exchange of California, whose company has to pay when its client physicians are successfully sued. He says the videos are one of the elements considered in deciding which cases to settle. ”The tape, combined with everything else, might compel us to consider settling.”
When documentary tapes do make it into the courtroom, the effect can be devastating.
Dr. Richard D. Snipes, a 71-year old obstetrician-gynecologist in Fayetteville, N.C., was sued by the family of a child who was born with palsy and mental retardation. Snipes` professional career spanned the delivery of 7,000 babies; this was his first lawsuit from a delivery.
Although he denied any wrongdoing, Snipes says his insurance company made an initial settlement offer. The settlement was rejected, and the case went to court. A documentary tape was introduced at the beginning of the trial. ”I think the tape made the case,” he says. ”It was lost after that.”
In December, 1988, the jury returned a $3.5 million judgment in the case, the second highest medical professional liability verdict in North Carolina history. The jury ”made up their minds because of the picture,” Snipes says. What those involved in professional liability litigation think about these videos depends on which side of the courtroom they stand.
”In terms of achieving an adequate verdict, the films have been very successful,” says attorney Michael P. Koskoff, who spurred Buckley into the business of making these documentary tapes, and who since has commissioned some 60 films.
Dr. Brad Cohn, president of Medical Insurance Exchange of California, sees the videos in different terms: ”My guess is that it inflates the settlement along the way.”
Attorney Koskoff, whose Bridgeport, Conn.-based practice often represents plaintiffs, says the tapes aid in what is one of his most daunting tasks in the courtroom: making jurors understand the life his client is leading.
Jurors are not as sensitive as they might like to think, Koskoff says.
”They have a cliched `Ironside` view of what it`s like” to be paralyzed, for example, referring to the TV show in which Raymond Burr plays a successful attorney in a wheelchair. ”One of the things that makes us sensitive is identification: `There, but for the grace of God, go I.` ”
With Buckley`s help, Koskoff says he is able to start undermining a jury`s innate cynicism and generate that kind of identification that helps produce the large awards he is known to obtain for his clients.
The tapes give the viewer ”an understanding of what the person involved has to do to have a `normal` life,” says Buckley.
”You can`t write on paper or describe verbally what it`s like to have your teeth brushed for you or to have to be moved from the bed to the john in the morning.”
Buckley made his first day-in-the-life film-videotape has since largely replaced celluloid as medium of choice for the productions-for Koskoff in a 1973 barter arrangement to offset a family member`s legal expenses.
Buckley had a distinguished career as a documentary filmmaker before being approached by Koskoff, and had won awards for films on such subjects as migrant workers and the Cuban revolution.
Buckley`s deal with Koskoff helped the attorney garner a $360,000 judgment and opened a new business venue for the filmmaker.
At Buckley`s home in Westport, Conn.-which contains B&B`s videotape editing studio-his wife, Ellie, and daughter, Pamela, also make documentaries. They have produced about 700 day-in-the-life films and videos.
The videos usually run 20 to 30 minutes and cost between $4,000 and $10,000 to make, depending on travel costs and complexity. Most of B&B`s commissions are for medical professional liability cases.
`Can`t contain the impact`
”Bad baby cases are extremely difficult to win, because everyone wants to give them money. The films make them more so,” says Mary Schaffner, a Nashville, Tenn.-based attorney and president of the Tennessee Association of Hospital Attorneys.
The tapes can be so powerful that defendants are taking a substantial risk when they allow a case to come to court when a tape might be admitted into evidence, says attorney Wade Byrd, of Fayetteville, N.C. Byrd, who successfully represented the plaintiffs in their suit against Dr. Snipes, represents both plaintiffs and defendants in professional liability cases. ”I don`t think you can contain (the tapes`s) impact,” he said.
If a case goes to trial, the chances are good that if a documentary videotape is available, the jury will see it.
Buckley had been making the tapes for five years before their admissibility was challenged in the Connecticut Supreme Court. Today, most states permit their use, at the judge`s discretion.
A day-in-the-life video made by Buckley was used as the summation in a recent Indiana case that produced the largest personal injury award-more than $10 million-in that state`s history.
”It`s usually in the jumbo cases where the tapes are used,” says Medical Insurance Exchange`s Cohn. That translates into a case that is likely to win a verdict or settlement of $250,000 or more, he said.
Insurers and attorneys say the videotapes are too expensive to be used in anything but the highest-yielding cases.
Lottery-style expectation
Critics say the tapes offer hope of a potentially huge payoff.
”My feeling is (that the tapes prompt) delay (in) settling cases that could be settled for reasonable amounts of money, if there`s a chance that you could get a whooping, lottery-like verdict if the jury is sympathetic,” says Martin J. Hatlie, American Medical Association senior attorney and coordinator for the Association`s Special Task Force on Professional Liability and Insurance. ”It makes obvious the need for some guidelines for the jury to follow in assessing noneconomic damages,” says Hatlie.
Plaintiffs` attorneys who commission the tapes say the videos are not merely a legal trick to steamroller the defense.
David Olivera, an attorney in Providence, R.I., who often represents plaintiffs, says he persuaded the family of a young mother-who had been brain damaged and was suing heranesthesiologist-that the day-in-the-life technique, aside from its potentially positive effect on an award, was the ”perfect vehicle to convey her situation in a non-embarrassing way.”
Adds Buckley, ”In court, the plaintiff is in an extremely difficult posture, sitting there they are almost denying the problem in order to retain some dignity. The tape helps get at the true reality of the situation.”
