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The Resolution Advocate: Tips on Getting to the Goal Line in Civil Litigation Using Videos at Mediation By: Guy O. Kornblum*, of Guy Kornblum & Associates (San Francisco, California)

Using videos at a mediation can be an excellent supplement to a mediation statement.It is a great way to provide the visual information that your adversaries and the mediator need to evaluate the case.Over the past several years, I have submitted a confidential mediation video in at least 75% of the cases I have taken to mediation.Personal injury cases are especially susceptible to the use of a video.It is an excellent way to tell your clients story.We seldom go to mediation without a video in serious injury or wrongful death cases.

We have had two highway wrongful death cases go to mediation in the last few months.We used videos in both, and they both settled for top value.Both involved defendants who were governmental entities.Here is how we approached each with video.

Case No. 1:This was a case by a 42 year-old widow with no children whose husband, a law firm accounting employee, was killed when a teenager driving his parents Mercedes was speeding down a roadway that had a history of cross-over accidents.Because of infighting between a County and City, separate governmental entities, a four lane expressway running for about 2.5 miles between two main streets in San Mateo County, California had no raised median barrier.After a death case a few years ago, a partial six foot raised median barrier was installed but only over about 25% of the roadway.Then our clients husband was killed when the recently licensed teenager missed a curve on an unlighted section of the road.Fortunately his parents had liability coverage of $1.5 Million, but the case was worth more.

After a period of aggressive discovery during which we uncovered more details about the infighting over who was going to pay for the remainder of the barrier, we scheduled a mediation.Our video contained:

An introduction to our client and her husband with compelling photos of them at their wedding, on vacation, with family and friends;
A segment from a news broadcast showing the accident scene;
Photos of the cars in position after the accident;
A computer reenactment of the accident demonstrating the speed of the teenagers car, and also providing evidence that a raised median barrier would have still prevented the head-on collision;
A video of the roadway before the accident;
Photos of the barrier being completed over the entire segment of the roadway a few months after our clients husband was killed; and
More compelling photos of our client, her husband and family.

We were careful not to oversell the message here:Could this accident have been prevented?Should it have been prevented?The video told the story.The case settled with the County, who essentially controlled whether the barrier would be built and was the impediment to it not being fully completed before our clients husband was killed, paying a significant amount to complete the global settlement.

Case No. 2:The second death case was more difficult.An errant driver who was likely having difficulties from insulin insufficiency crossed over on the upward side of a hill trying to pass two vehicles.Clearly he was negligent.He struck a vehicle being driven by the 25 year-old Filipino daughter of our clients.The decedent lived at home with her parents and her sister, who was younger and a student at the University of California at Davis.She was beautiful inside and out, as was her sister.The family was extremely close following the cultural pattern of her heritage.

The problem was the driver had 15/30 coverage.The State of California maintained the road which was an old farm road that had been repaved and redone in a patchwork manner.Over the years it became a major thoroughfare between Interstate 80 and Central California.Despite the heavy increase in traffic, and some major accidents, it was not improved the way it should have been.The stretch where our clients daughter was killed was particularly dangerous because of a series of hills that impeded drivers going in her direction from having a line of sight for oncoming vehicles, and also because of raised areas along her right that prevented her from escaping safely off the roadway should a car come as the drivers car did.The decedent was essentially trapped in this area, with no way to see far enough ahead and no where to go if she could see a vehicle coming toward in the wrong lane of traffic.

But there was another problem.We had little in the way of economic damages.Under the California rules (resulting from Proposition 51 passed in 1986; Cal. Civ. Code sec. 1431.2), a defendant at fault is responsible jointly for all economic damages.However, for non-economic damages, a defendant is responsible only for that portion of these damages that is equivalent to its percentage of fault.The State argued for either no liability or a small percentage fault, which would keep the verdict low.
Our video contained segments showing:

The heavy flow of traffic on the segment of road where the decedent was killed (at 7 a.m. in the morning during commute hours);
Photos of the accident area, and the vehicles (we chose the less grizzly ones; indeed there were some that were gruesome);
A series of videos showing the path of each vehicle which clearly demonstrate the lack of visibility on the approach to four hills in sequence, and the high bank on the drivers right preventing any exit of the roadway even if she saw a vehicle in time to try to avoid it; the trap was clear;
An interview of the decedents cousin about the family relationship and the close knit family unit that this Filipino family enjoyed;
An interview of the decedents sister showing again the close family relationship; and
Various family photos from vacations and holidays.

I should add here that the interviews of the family members were outstanding.Both the cousin and sister were compelling genuine, intelligent, completely credible, and appropriately emotional at the right time.They would have been outstanding witnesses at trial.Even the States counsel openly conceded at mediation that we had an excellent non-economic case after he saw the video.He had taken the depositions of the parents, but he had not really touched on the relationship issues as much as we had hoped.We had to bring the evidence on this issue to him.

This case also settled on the strength of the video, plus one our of experts on highway design attended the mediation with outstanding drawings showing the configuration of this old farm road and how it had only been paved but not altered to avoid the dangerous condition that was created by the grades and configuration of the hills in the area where our clients daughter was killed.

I have other examples of how video has supplemented our mediation statements and other parts of our mediation presentation.Personal injury and death cases are good cases for visual information.Medical cases often lend themselves to video presentations.I often get a treating physician to do an overview of the medical issues with charts, models or other illustrations to supplement the written medical presentation.Strong visual stimuli will assist in supporting your written presentation.

I usually try to keep them no more than 60 minutes.In fact, I often tell my attorneys and staff to keep it to a classroom hour, if they can.

We also always put appropriate titles on the video and put a statement such as the following at the beginning and end:This video presentation has been prepared for this mediation and is intended to be a confidential mediation video for the negotiations under the supervision of [mediator] on [date].Sometimes I cite to the statutory or court rules protecting this information.

Pictures are definitely worth many words here, and are a great supplement to a well organized and comprehensive mediation statement.

Good mediating

1 Not all what we put on a mediation video is admissible.While we try to stay as close as we can to the evidence that we believe a jury will hear, that is not always possible.We concentrate more on telling the video story and not overly concern ourselves with the fine points of admissibility.We assume that at trial, the jury will hear and see most of what we put on the video in some form.

*Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from Hastings College of the Law, University of California in 1966.He is the principal in his San Francisco based trial firm, Guy Kornblum & Associates.Mr. Kornblum is certified in Civil Trial Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of LCA.He is also a Life Member of the Million Dollar and Multi-Million Dollar Advocates Forum.He co-authored the recently released two volume work, Negotiating and Settling Tort Cases, published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America).He is a Northern California Super Lawyer for 2006-2008.

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