Attorneys have a growing need to present judges and juries with visual evidence, both photo and video. Professional photographers who can produce prompt and responsive services, and who want to expand their availability for professional work, should consider marketing their services to the legal community.
Litigation support services won't likely require much post-processing or large-format print work, but it may require making yourself available for follow-up discussions or court testimony.
What is Litigation Support?
Litigation Support is an umbrella term for the services that attorneys and parties involved in lawsuits need to help them prepare for trial. In the movie The Devil's Advocate, Al Pacino's character who–spoiler alert–is actually the devil (it's not a great film), is asked why he chose the law as the vehicle for his insidious plans. His response: “Because the law, my boy, puts us into everything”
This statement is as true and reliable as Pacino's overacting since The Godfather Part II. Lawsuits can be about anything and everything. The world is too big and too vague for lawyers to know all the details of a client's special area of interest, or business. Getting “into everything” means that lawyers are perpetually ignorant. Lawyers may know about the law, but not so much about plumbing, cattle ranching, polymer adhesives, playing bass guitar, laser eye surgery, or the online market for Battlestar Galactica collectibles. Lawsuits could be about any of these things.
This is where litigation support comes in. It's about helping lawyers, judges, and even juries understand the background and details about the new world that they've walked into. It often takes the form of financial or technical assistance, from accountants or IT professionals, but that's certainly not the extent of the litigation support world. Think of litigation support generally as taking two forms: expert witnesses and logistical support. Because photography is both a specialized area of knowledge, and a way to create an objective visual record, photographers are uniquely suited to fulfill either role.
There are only two kinds of witnesses in court: fact witnesses and expert witnesses. Some individuals can be both, but there is no third category. Expert witnesses give opinions. Fact witnesses–as the name suggests–give facts. Because experts give opinions, the rules require that expert witnesses be qualified. This often means that the expert witness has formal education, but qualification to be an expert in a particular area can also come from experience. While a cardiovascular surgeon will have an advanced degree to testify before at trial, an auto mechanic may not. Both may be well-qualified expert witnesses in their respective fields. There's a whole subset of legal study surrounding various standards for expert witnesses, but suffice it to say, if you just got your first DSLR six weeks ago, you're probably not going to be an expert witness. That doesn't mean you're not taking great images.
Popular fiction often characterizes the expert witness as a hired gun with fancy degrees who will do or say anything for a paycheck. Don Henley expressed this view through the voice of a cynical character in his 1995 song, Garden of Allah.
Today I made an appearance downtown
I am an expert witness, because I say I am
And I said, gentleman, and I use that word loosely
I will testify for you
I'm a gun for hire, I'm a saint, I'm a liar
Because there are no facts, there is no truth
Just a data to be manipulated
I can get any result you like
What's it worth to ya?
Fortunately, the mainstream view of expert witnesses is not nearly as sardonic. In fact, experts are essential to the judicial process. Without them, complex issues would be extremely difficult–if not impossible–to present to a jury. Imagine a lawsuit over exploding hoverboards without an expert to explain how batteries overheat or leak or catch on fire. Or why we need hoverboards. Or better still, how we all got duped into calling them “hoverboards” when, clearly, there is no hovering involved.
The Photographer as an Expert Witness
The ubiquity of cameras means that lawsuits are more likely to use images as exhibits for judges and juries to review. What if one side of a case believes that a picture has been seriously altered in Photoshop? A photographer with experience in Photoshop might offer a useful opinion about variations in contrast, or pixelization that makes the photo more or less trustworthy.
But expert witnesses don't have to have hyper-technical knowledge. Often an expert can be used to express an industry standard. Knowledge of the market for photography services can also be useful to a court.
Suppose Betty, a wedding photographer, is sued by a dissatisfied couple who alleges that the photos from their recent nuptials are unprofessional and not sufficient post-processed to make them look like the supermodels they know they are. Betty's attorney contacts Tom, also wedding photographer, and asks him to consider being an expert witness. Tom may be asked to review the photos, to comment on their quality and acceptability in the marketplace. He might be asked to render an opinion on whether he thought that Betty's consultation with the couple, her pricing, her behavior the day of the wedding, or her follow-up and service were of the sort that professional photographers typically provide. In short, whether Betty's products and services meet the “industry standard” for wedding photographers.
Other areas in which a photographer may be able to act as an expert:
- In a dispute between two photographers over whether the eBay listing for a lens was misleading or not misleading, an expert could tell the lawyers what most photographers would consider important to disclose and why.
- In a suit about the value of rare or vintage photography equipment damaged in a car accident.
- In a criminal case, a photographer testifies for the defense that a 70-200mm lens is often used in portrait photography and the fact that the defendant had one did not make the defendant a stalker.
Unlike serving as an expert witness, anybody who is reasonably competent with a camera, and can be available to testify, can provide logistical support to the legal community.
The Visual Record
Judge and juries have come to expect court exhibits that are visual. The internet, television and the ease of instant information–particularly instant visual information–has changed the expectation of modern juries and judges. They don't just want to be told about the car accident, the coffee shop, or the barn that collapsed on Milli and Vanilli, the Plaintiff's prized heifers. They want to SEE these things. That's where photographers come in.
Suppose a car accident occurred and Main Street and Oak Avenue. Lawyer Dewey wants to show the jury that this is a wide intersection, with no obstructed views. He could hire a photographer to take pictures of the scene. You might wonder why Lawyer Dewey doesn't just take pictures himself, or send his client to take these pictures? Without getting into too much detail about the mechanics of trials, it's enough to note that a witness is necessary before the judge or jury can consider the pictures as evidence. And a lawyer can't be a witness.
If his client takes the pictures, the jury knows that his client has a bias. That perceived bias might lead them to question whether Dewey's client took the photo from a certain point of view or with a wide angle lens to make it look wider than it would to a driver.
But if Joe Photographer, who doesn't have any axe to grind in the outcome of the case, simply testifies that he took photos, then the jury will be more likely to believe Joe and move on with other evidence. Joe probably wouldn't be on the witness stand more than 5 minutes. That instant credibility transfers from Joe Photographer to the photos themselves, which could serve as very important pieces of evidence.
Video is also critical. More and more court cases make use of video to educate judges and juries. These run the gamut from a professionally-produced, day-in-the-life summary of an accident victim or a criminal defendant being sentenced by a court, to a more stoic, unedited walk-through of a suburban home for purposes of illustrating various construction defects.
The law is as varied as human commerce and interaction. This means that photographers with real estate or commercial photography backgrounds may translate their skills as well as those with a portrait experience. There is no one type of photography skill that makes him or her the “perfect” fit for assisting lawyers and courts.
Other examples of photo or video for logistical reasons include:
- photos of fencing on a disputed boundary line between two properties;
- images of water damage in residential basement;
- close-up photos of wounds suffered by a plaintiff; or
- aerial drone images showing the relative positions of buildings or other elements
Making Contact with the Legal Community
Law offices can potentially interact with many different professionals through the course of a various legal matters: accountants, court reporters, realtors, counselors, appraisers, medical professionals, engineers. There's no reason photographers can't be among them and, increasingly, they are. Being on a single lawyer's contact list probably won't get you business every week, but can yield benefits in the future.
As always, networking is best done in-person. If you've met an attorney through wedding photography or senior pictures, or if you're a personal friend, then let the attorney know that you're available for litigation support or expert witness services. It doesn't have to be a lawyer, either. Paralegals often have a great impact in choosing litigation support services.
If you can't market yourself in person, it's best to reach out to them with a physical mailing, not an email or simply a LinkedIn contact. A letter letter or brochure, with a business card, works well for this. Keep it short–attorneys don't want to read more than 3 paragraphs in any letter they can't bill someone for reading. The goal is simply to make your contact information available in the law office database the next time a case needs a photographer. Somewhere in the letter, a phrase such as, “I want to let your firm know that I am available for photography-related litigation support, including [real estate, drone photography, injury documentation] and related necessary testimony” should make your intentions clear.
If you want to cast a wider marketing net, you can also check for attorney publications in your area, published by local or state bar associations. These old-school print publications routinely run classified ads for expert witnesses and litigation support services.
Availability. Be available not just to take the images and get them back to the the lawyer in a timely fashion, but also be available for follow-up. This might take the form signing an affidavit, but it could mean that you make yourself available for court testimony.
Pricing. Be ready to relay a clear pricing structure for your services. This next point is important. Although no one wants to overpay, it's more important that your pricing be clear than cheap. Don't be afraid to include a separate fee if you are needed to appear in court–this is common for these types of witnesses. If you can provide a price per-job (not based on raw number of photos), that would be easier for the attorney to relate to her client. It's not rude or unusual in this arena to ask for a deposit up front, either.
Final Medium. Will you be preparing large prints or just delivering digital copies? Most attorneys will probably just want digital copies, but some might want a large print for an easel. If you'll be providing video, make sure the format is known.
Know Your Client. Be sure to clarify at the time you are hired: are you going to be working for the lawyer or the lawyer's client? Depending on the nature of the case, you may have very little contact with the lawyer's client. This might help if you get conflicting instructions, or part of your bill remains unpaid.
If you're looking to expand into new areas of revenue for photography services, consider marketing yourself the legal community. Unlike much of modern photography work, very little post-processing is desired or necessary. If you work is prompt and you're available to potentially testify in court, consider reaching out to attorneys.