The 86th Legislature ended its regular session on May 27, 2019. According to the Texas (more…)
by Garreth A. Devoe and Jeffrey S. Valliere
If “a picture is worth a thousand words, then a video is worth exponentially more.”1 Thus stated the Supreme Court of Texas in its recent seminal holding in Diamond Offshore Servs. v. Williams. In personal injury lawsuits, a defendant’s most useful litigation tool is often video surveillance. Unlike witness testimony, video evidence allows a jury to see for themselves how a plaintiff acts in his post-injury daily life. Indeed, the issue of the admissibility of surveillance video of injured plaintiffs has become so prevalent that the Supreme Court of Texas recently held that, but for rare exceptions, trial court judges must review relevant video evidence proffered in personal injury cases before deciding whether to exclude same.2
In Diamond Offshore Servs. v. Williams, the Supreme Court of Texas overturned an approximately ten million dollar jury award because the district judge failed to review video footage of the purportedly injured plaintiff prior to excluding the video.3 There, Diamond Offshore Service Limited and Diamond Offshore Service Company (collectively, “Diamond Offshore”) employed Willie David Williams as a senior mechanic.4 In January 2008, while working on an offshore drilling rig owned by Diamond Offshore, Mr. Williams allegedly hurt his back on a large piece of equipment.5 After two subsequent back surgeries, Mr. Williams alleged that he continued to suffer back pain and neurological problems with his foot and toes.6 Further, his treating physician declared him “totally disabled[.]”7 Mr. Williams never returned to work.8
In May 2011, Mr.Williams filed Jones Act negligence and unseaworthiness claims against Diamond Offshore.9 He also underwent a functional capacity evaluation (“FCE”), the author of which concluded that his pain questionnaire responses were “’consistent’ with patients who are ‘exaggerating their symptoms’” and that he could perform medium-level physical labor with certain physical restrictions.10
During discovery, Diamond Offshore retained a surveillance investigator, and on the first day of surveillance, for twenty-seven minutes, the investigator videotaped Mr. Williams using a mini-excavator to clear away a dilapidated mobile home and bending over thirty-four times over a four-minute period.11 On the second day, for twenty-eight minutes, the investigator videotaped Mr. Williams sit on a stool while occasionally gathering tools and materials and use his body to maneuver a large “monster wheel” onto his truck.12
At the plaintiff’s motion in limine hearing on the video, the district court judge, after stating that she had not watched the video, ruled that Diamond Offshore could only use the video for impeachment purposes and if Mr. Williams “opens the door[.]”13 At trial, Mr. Williams testified that he was unable to hold any job because of his constant back pain and physical restrictions, and his treating physician disagreed with the FCE’s conclusion as outdated.14 Although Diamond Offshore proffered the surveillance video on three separate occasions during trial to counter this evidence and corroborate the FCE, the district court judge continued to exclude the video.15
Subsequently, the jury returned a verdict in Mr. Williams’ favor, awarding him nearly $10 million in damages, nearly $4 million of which was awarded specifically for pain and suffering.16 In a split decision, the court of appeals affirmed the verdict, determining that the district court did not abuse its discretion in excluding the video.17
The Supreme Court of Texas held that (1) the district court abused its discretion by not watching the video prior to determining its admissibility; (2) the video should not have been excluded from the evidence; and (3) the district court’s exclusion of the video constituted a harmful error.18 The Court found that the district judge had abused her discretion based on the district judge’s statement that she had not watched the video.19 The Court held that trial courts must view video evidence before ruling on its admissibility where the video’s contents are at issue, unless (a) it is “obvious” that the potential prejudice of the video substantially outweighs any probative value the video might have;20 (b) the video evidence is a video deposition in which no party is objecting to a visual aspect of the deposition; and/or (c) the proffering party offers a lengthy video too close to trial.21 The Court found that the video in this case satisfied none of the exceptions and that the district judge should have viewed the video herself to determine its admissibility.22
The Court also found that the video should not have been excluded because its depiction of Mr. Williams performing physical activities was probative as to the issues of his pain and suffering and loss of earning capacity.23 Further, the video was not automatically unduly cumulative because a visual representation allows a jury to see signs of discomfort in an injured party that testimony alone cannot demonstrate.24
The Court also found that the admission of the video did not constitute unfair prejudice because viewing the video would not encourage the jury to decide on an improper basis. Finally, the Court found that the video was not misleading because (a) the investigator recorded Mr. Williams for two consecutive days for thirty minute periods, (b) Mr. Williams did not allege that Diamond Offshore omitted any video footage, and (c) Mr. Williams did not allege the Diamond Offshore altered any video footage.25
In finding that the district court’s exclusion of the video constituted a harmful error, the Court reasoned that if testimony from the plaintiff and his witnesses about his physical activities was important, then providing the jury an opportunity to actually witness some of those activities was just as important.26 Further, the video could have supported the FCE’s conclusions, as well as undercut Mr. Williams’ overall credibility as to the liability of the defendant.27 Thus, the Court overturned the jury award and remanded the case for a new trial, in which the video must be admitted.28
The Supreme Court of Texas has clearly swung the evidence pendulum in favor of personal injury defendants by making most video surveillance admissible. Nevertheless, in personal injury lawsuits, both defense counsel and plaintiffs’ counsel should take several steps to bolster their respective sides.
Defense counsel should first attempt to obtain a sufficient amount of footage each day on consecutive days. Doing so will help defeat plaintiff’s counsel’s inevitable arguments that the video is misleading or merely a “snapshot” of the plaintiff’s post-injury life. Second, defense counsel should instruct their investigators to only film the purportedly injured plaintiff while performing tasks he or she claims an inability to perform so as to avoid plaintiff’s counsel’s argument that an omission from the video renders such video misleading and inadmissible. Thus, defense counsel should not retain any investigative service that involves a remote-controlled camera that films for an extended period of time, e.g., a camouflaged unmanned camera set up outside an injured plaintiff’s residence.
Third, defense counsel should submit surveillance video as evidence well in advance of trial to give the district judge sufficient time to view same, but not so far in advance as to elicit plaintiff’s counsel’s argument that such video is outdated. Finally, defense counsel should ensure that all surveillance video has clear date and time stamps on the video itself.
On the other hand, plaintiffs’ counsel should not completely abandon the “snapshot” argument. In general, plaintiffs’ counsel should always request that defense counsel produce all video surveillance taken with the intent to videotape the plaintiff, regardless of whether or not the plaintiff actually appears on the video. Doing so will bolster plaintiffs’ counsel’s unfair prejudice argument to the court, particularly when defense counsel uses unmanned cameras that capture extensive periods of video. Further, if the surveillance video does capture the plaintiff performing an activity that he or she has alleged is difficult to perform, then plaintiffs’ counsel should emphasize to the court that video not taken on consecutive days is unfairly prejudicial because it does not show the harmful effect that the physical activity may have had on the plaintiff on subsequent days.
Diamond Offshore ratifies the defensive strategy of obtaining surveillance video of a personal injury plaintiff. While the decision does not ensure that surveillance video will be admissible, a trial judge is now essentially required to review the film before ruling on its admissibility. Finally, plaintiffs’ counsel must now be prepared in more cases to controvert the substance of surveillance video in front of a jury rather than arguing to exclude it in front of a judge.
1Diamond Offshore Servs. v. Williams, 2018 LEXIS 186, 2 (Tex. March 2, 2018).
2 Id. at 3.
3 Id. at 3, 5.
4 Id. at 3.
5 Id. at 4.
12 Id. at 5-6.
13 Diamond Offshore, 2018 LEXIS 186 at 7.
14 Id. at 6.
15 Id. at 6-7.
16 Id. at 3, 7-8.
17 Id. at 8.
18 Id. at 8, 13-14, 19.
19 Diamond Offshore, 2018 LEXIS 186 at 9.
20 Id. at 12.
22 Id. at 12-13.
23 Id. at 15
24 Id. at 16.
25 Id. at 18-19.
26 Id. at 20-21.
27 Id. at 21-22.
28 Id. at 23.
“Oh good grief, another article by an older (I prefer the word experienced) lawyer who assumes he knows things younger lawyers could not possibly know.” But let’s face it, if a significant legal career does not somehow impart wisdom to the older lawyer that is not available to a lawyer who is not yet had that career, something probably is wrong. So, with my apologies for the presumptuousness of the title, let’s get started.
I started my law career with what was then one of the largest law firms in the world. The new lawyers that year (25) outnumbered most law firms in the country. And every one of us thought we were hot stuff based upon how we had been recruited—even though not one of us knew diddly squat about the practice of law. But with zero knowledge about how to practice law, we all had one burning desire: to make partner. According to everything we saw, partnership was the ultimate goal of practicing law.
I now wonder what those experienced, seasoned lawyers thought when every snot-nosed, bugger-eating young law student interviewing for a job asked the same question: “How long until I become partner?” It was all we talked about. We analyzed every partnership decision and quizzed the ones who “drank from the silver chalice” (yes, that is what we called it) the previous year to see how they did it. So let me be clear: the goal of your law practice—the reason you put in long hours—is not to become a partner. It is to become a better lawyer and serve the interests of your clients to the best of your ability.
I don’t intend this as a slam on big firms, because there are great lawyers in big firms, just as there are great solo lawyers. But when I left law school, I thought the only way to find good lawyers was to find big firms in Martindale Hubbell and look for partners. I dreamt of the day when I could introduce myself to a New York lawyer as a partner in my large Texas law firm and the New Yorker would know I was a lawyer to be reckoned with because of the name of my firm. I even noticed a tendency of lawyers with big firms to introduce themselves with the name of the firm: “Hi, Bob Smith, Big Firm XYZ” (I have a friend who met such a lawyer and said back to him: “Good to meet you, Steve Smith, Michelle’s husband”).
I certainly do not intend to suggest the partners at big firms are not good lawyers—most of them are excellent lawyers. But they are partners because they are good lawyers, not good lawyers because they are partners. If you want a goal to chase, make it being a good lawyer—not being a partner.
This is probably the most important lesson a lawyer needs to learn. Because (trust me on this) if you have enough clients, you can have all the partners you want. I am not even going to discuss it further.
And that brings me to the fourth thing young lawyers don’t know but should. If you are with a firm, regardless of size, think about this:
The first thing you do after becoming a partner is sign a note to your partners for the purchase of your share of the firm. Then you sign a guaranty for the firm’s line of credit at the bank. And then a guaranty for the firm’s office lease. You may go from being debt-free to having a huge contingent liability. Yes, it all may be worth it. But you should know in advance what is coming. Plus you now get to share in the malpractice exposure of all your partners. And pick your partners carefully. One partner at a big firm told me that after all the metrics of evaluating young partner prospects, his last inquiry was: “Do I want to share malpractice exposure with this lawyer?”.
By the way, partnership is not the automatic financial windfall you think. Partners who don’t produce are kicked out of law firms just like unproductive secretaries, so don’t get too haughty just because you drink from the silver chalice.
Now, after all this, if you still want to become a partner at your firm, regardless of its size, there is one more truth you should know:
Seems unfair, right? I just told you that if you have clients, you can have partners, so what is the deal? Well, the reality is that the young lawyer who handles cases well and brings in her own clients often loses out to the young lawyer who is a perfect second-chair lawyer and always makes the partner look good. Partners vote. Clients don’t. Never forget that.
Ok, that’s enough about law firm dynamics. Let’s talk about the actual practice of law and the development of a law career. And let’s start with another lesson I had to learn the hard way.
After I left my big firm and went out on my own, I did not have a lot to do. A friend from my old firm asked if I would represent a former paralegal in her divorce. She was almost out of money and was getting the run-around by her well-off husband. I didn’t want to become a divorce lawyer, but I agreed. After all, it was that or read advance sheets (yea, I know—you do not even know what advance sheets are; not important to the story).
I sent out interrogatories and, after 30 days, got back form objections and avoidance answers. With nothing else to do, I set his objections for a hearing three days later without even filing a motion to compel. And I sent out a set of follow-up questions on the avoidance answers he had given me. I quickly got a call from opposing counsel asking what the rush was, suggesting I chill a little (beware the lawyer with only one case). I politely told him I was going forward full speed. I did this for a couple of months and the divorce settled favorably for my client. Opposing counsel and I became friends. I am still proud of my work for that client. But for the next 25 years, my opposing counsel referred me divorce work. I heard him tell someone I was the best divorce lawyer he had ever come up against (little did he know, I just was the least busy!). So be careful what you do well. You will end up doing it for a long time.
Now after a warning about doing things well, here are two warnings about not doing things well.
Doing something well but late is not doing something well. Deadlines matter to people, even if you think they are arbitrary. Even if they ARE arbitrary. For some reason, young lawyers (and yes, some “experienced” lawyers) think deadlines are advisory and can be ignored if there is a good reason to do so. Working lawyers often juggle competing projects, one of which is always more important that the others in an objective analysis. But in a subjective analysis, missing someone’s deadline without telling them in advance is unforgivable and destroys trust and confidence. And having a good reason for missing the deadline gets you nothing. Think about your cable guy. Or your IT person. Do you really care why they were not on time? When you expect a meal, someone giving you a good excuse for no meal does not satisfy the hunger.
As a young lawyer I often missed deadlines. I put off unpleasant projects so I could do something I wanted and then found I couldn’t finish the unpleasant project on time. I would evaluate deadlines and sometimes decided the deadline wasn’t really all that important compared to other things I wanted to do. And sometimes what I wanted to do was just go home. But every time I did that, I lost one vote in my campaign to become a partner.
Deadlines always matter to the person setting the deadline, whether it is a partner, a client, or a judge. Ignore or change them at your peril.
Now here is the rule that might discourage you, but I beg you to take it to heart. It took me six years to accept this reality.
Mistakes matter, even one as simple as a typo. Keep in mind that lawyers are a self-selected competitive bunch. We constantly evaluate each other, looking for a reason to feel superior. Whether it is the law school we went to, class ranking, number of times we took the bar exam, whether we are partner or associate, or how much money we make, we constantly rank and compare ourselves to each other. If your letter to me has typos or other indicia of sloppiness, it affects my opinion of you. And my opinion of you affects how much I offer in settlement, whether I later refer you a case, and lots more. It affects how seriously the judge considers your arguments. Older lawyers with solid reputations and skins-on-the-wall might get away with a typo or two, but for the young lawyer perfection is the standard—and no mistake is forgivable.
I had a secretary at a large firm tell me she could always pick the law clerks who were going to be offered permanent positions because it was always the one she hated. I asked who she picked to hate and she said the ones that made her retype their documents three or four times (as they strove for perfection).
This is related to the rule about deadlines and perfection, but I think different enough to deserve independent status. If a client or partner asks you to get a copy of the police report, request it that day, even if you know it won’t help the case. If your partner asks you to check the expiration date of the insurance policy, check it even though you know it is months away.
I am always shocked when lawyers ignore a request from a client, partner,or court because they consider it unimportant. If you are asked to do something, either say no or go do it. It’s that simple.
And now to my final suggestion on things you should know but were not taught in law school. Once again, this lesson comes out of my own personal pain-and-suffering. And lack of sleep.
If you haven’t had this dream yet, you will. It takes several forms but usually has one or more of the following components. You are back in college or law school. You discover there is a class you have not been attending. You intended to drop it but the drop deadline has passed. You can’t find the textbook. You can’t find the exam room. Your locker is all the way across campus and you can’t remember the combination-lock numbers.
Or maybe you are taking the exam but realize you have no pants, but no one has noticed yet and you are afraid to move because movement may cause them to notice. Your shoes are missing, even though they were there just a minute ago. Or you’re trying to return to your office or leave the office but you can’t find the right elevator.
These dreams are powerful messages from your subconscious that there is something you should be doing but you are not doing it. Those unpleasant projects you put off, they are the father of this dream. Leaving work at 5:00 P.M. to see your daughter’s school play instead of completing the brief, the mother of the dream. You will stop having these dreams when you stop exposing yourself to the risk of failure by procrastinating.
When I have this dream, I know within seconds what is causing it. Trying to go back to sleep is pointless so I just get up, shower, dress, and go to the office at 3:00 or 4:00 in the morning to work on the task I have been avoiding. I stopped having these dreams when I stopped avoiding the unpleasant projects that come with every law practice.
On my first day of law school, the Dean welcomed us with a quote from Supreme Court Justice Joseph Story:
I will not say with Lord Hale, that “the law will admit of no rival, and nothing to go even with it;’ but I will say, that it is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favours, but by a lavish homage.
Well, I wasn’t ready to give the law a lavish homage. I had a wife, children, and multiple hobbies and diversions, all of which gave me great joy. The suggestion that my status as a lawyer would be anything more than a source of admiration in others and a path to financial security had never occurred to me.
To be more specific, it never occurred to me that it would be hard to be a lawyer. That it would require me to choose between reviewing a ninth box of documents produced by the other side or leaving to attend my daughter’s soccer game. Or that I would have to leave a family vacation and drive to Lubbock to attend docket call on December 26 for a case everyone knew was not ready for trial. It didn’t even occur to me that I would get my ass chewed out in open court by a federal judge for failing to submit proposed findings of fact as a defendant when all my proposals were simply going to be the exact opposite of the ones the plaintiff filed. But all that really happened.
I have a law partner who told me what she wasn’t taught in law school was that law is a service industry. Think about other service industry jobs. What do you think of a waiter who is slow, who doesn’t check on you and keep you informed and your glass full? What do you think about the doctor who doesn’t have time for you and doesn’t explain things to you? Won’t return calls?
Being a good lawyer is hard. Accept that. Do the hard things and they get easier. You can be a good lawyer and still have a good life outside the law, but do not think that it happens automatically, or easily.