BROOKE GLADSTONE: Len Gabay is a lawyer based in Austin, Texas, whose clients include many people injured or worse in car wrecks or through medical malpractice. Gabay often does best by his clients by keeping them out of court. He'll put together what's called a "settlement film," a kind of documentary of the plaintiff's misfortune and show it to the defendant. Nine times out of ten, they settle, and everyone is spared the ordeal of a trial. Gabay approaches these films both as lawyer and director.
LEN GABAY: What we try and do is approach it from a standpoint of this is what has happened to these people, and they are not just a claim number that an insurance carrier might have on their desk in a folder. This is their story. You have an opportunity to get the case settled if you wish. If not, you've just seen some of what will be presented at trial in the case.
BROOKE GLADSTONE: So basically what you're talking about is an audio-video form of arm-twisting.
LEN GABAY: Yeah. Yeah. [LAUGHS]
BROOKE GLADSTONE: What's the reaction in the room, generally, when you show them?
LEN GABAY: Very interesting. And, and I'll give you a good example. There was a video that we presented in a very serious case. The defense lawyer is known to be a - kind of a hothead -you know - steam coming out of his ears and fire out of his eyes and all that sort of thing, and the effect that it had on him --[LAUGHS] he didn't know what to say when it was his turn to talk. And it mellowed him out quite a bit.
BROOKE GLADSTONE: And he settled?
LEN GABAY: The case did settle. I would say nine out of ten times they settle.
BROOKE GLADSTONE: And what role do you play in the making of these films?
LEN GABAY: Well, it started off that I was [LAUGHS] -producer, director, writer, editor - I set up the lights and operated the camera and did the interviews. In 2000, I took a film class here in Austin, and I now work with David Leyon who's one of the assistants at the film school.
BROOKE GLADSTONE: But mostly they're made by filmmakers for lawyers, right? I mean you're unusual in being a lawyer who makes the movies yourself.
LEN GABAY: I, I don't know any other lawyers that do these themselves. And there's a real advantage to having a lawyer who handles these cases on a daily basis, making your video and rather than someone who might be proficient, you know, aesthetically with a camera, because they might not know all the elements that make a good case.
BROOKE GLADSTONE: Tell me about the Firestone Tires case.
LEN GABAY: This was probably the most tragic case that I've ever worked on. A family of 3 was coming back from a vacation when their Ford Explorer with a Firestone Tire. The tire exploded. They went into the median, and the mother survived. The father and, and the 6 year old girl did not.
BROOKE GLADSTONE: There's a part in the film where you re-construct the crash scene.
LEN GABAY: We had the 911 tape, and we found the young lady who called in to 911 and EMS, and through that 911 tape and photos that we had from the scene from DPS we were able to really paint the picture of what was going on at the scene. [911 TAPE PLAYS]
MAN: Is the child okay?
WOMAN: And there's a lady inside the car!
MAN: Okay, okay - calm down.
MAN: Calm down. Is the child all right?
WOMAN: Is the child okay?
MAN: The child is okay.
MAN: The child is okay?
WOMAN: She's not.
MAN: The child is not okay?
WOMAN: Is she breathing?
WOMAN: She's not breathing.
MAN: -- they're not breathing, ma'am.
WOMAN: The child [...?...]. [END TAPE]
LEN GABAY: I call it the grand slam of grand slams. Anyone who watches that part of the video is there at the scene, experiencing what, what this woman was experiencing at the time. Very, very effective and very sad.
BROOKE GLADSTONE: Your most tragic case and yet your most successful film. The defense settled for a lot more than you expected.
LEN GABAY: I think the defense settled for a lot more than they expected. And then the family required that as part of the settlement, the board of Ford Motor Company sit and watch the video so that they would know what the problems that they were having at Ford and Bridgestone did to a very real family.
BROOKE GLADSTONE: Is there a larger issue here? We just heard from investigative reporter Morton Mintz who says that these trials are necessary so the public can be informed of the misfortunes of clients like yours, and it could protect a lot more people in the long run if these cases actually went to trial.
LEN GABAY: Oftentimes, confidentiality agreements may be to the amount of the settlement, but a lot of the information that is developed throughout the course of litigation and getting a case prepared to go to trial is not subject to a confidentiality agreement, and much of that information is available through associations like the American Trial Lawyers Association, through the Texas Trial Lawyers Association, and other trial lawyers associations around the country. There are listserves, there are companies that report verdicts and settlements. A lot of times what'll happen is, a lawyer'll get a fantastic settlement and will report that information, make it public, and it's in a database that just has to be accessed.
BROOKE GLADSTONE: So what you're saying is that the information is out there. Reporters may just have to dig a little deeper. But what happens if, in order to get a good settlement for your client, you have to agree to the squelching of documents? The defendant demands it?
LEN GABAY: I've not been in that situation. I think that, you know, the people that may be in a situation like that may be with, you know, medical devices, products liability, but in the regular car wreck cases or, you know, even medical malpractice cases, those are issues that may not be, you know, squelchable.
BROOKE GLADSTONE: Len, thank you very much.
LEN GABAY: Okay, Brooke. Thank you.
BROOKE GLADSTONE: Lawyer/filmmaker Len Gabay practices in Austin, Texas.
BOB GARFIELD: Coming up, the Brazilian government wants to license reporters, and for those who love to hate the media, Rathergate is the gift that keeps on giving.