January 2010 Issue

Kathleen Flynn Peterson Enhanced persuasion: Effective use of demonstrative at

[Ed. Note: The following material was al aids increased attention value 130 per­ demonstrative evidence into the record presented at CAALA’s Annual Convention, cent and retention value increased 235 as part of the ’s .7 September 2009] percent over black and white. Demonstrative evidence can be a It is a rare occasion to find a lawsuit powerful and convincing tool. On the Throughout your case you will be in which demonstrative evidence cannot other hand, its use can potentially create telling your client’s story. Look to who be used. Indeed, the use of demonstra­ a risk of misleading or confusing the jury your audience is. Alter your presentation tive evidence dates back to the eigh­ about the issues.8 In addition, certain to fit your audience. Whether your audi­ teenth century.2 The use of demonstrative demonstrative evidence, such as grue­ ence is the insurance company, the evidence at trial is limited only by the some photographs, may give rise to a defendant, defense counsel, the media­ ’s ability to portray it. Federal danger of unfair prejudice.9 However, tor/arbitrator, judge or jury; how you Rules of Evidence encourage the use of such evidence is not automatically communicate your client’s case can take demonstrative evidence with its liberal excluded; rather its admissibility is deter­ various forms. Whether you do a face-to­ rules of admissibility. Virtually anything mined by employment of a balancing face meeting; send a letter, video or that appeals to the senses of the trier of test.10 other materials is a decision to be made fact may be offered into evidence. on a case-by-case basis. Only you can Relevancy decide how to best present your client’s Demonstrative evidence defined As with any other evidence, demon­ story. The term “demonstrative evidence” strative evidence is relevant and thus, Modern research studies show that is often used to describe all evidence admissible if its appearance or other individuals learn 75 percent of all they from which the trier of fact may derive a physical characteristics render a fact of know through the sense of sight. That relevant firsthand sense impression in consequence to the determination of the being the case, the most effective way for contrast to the traditional presentation of action more or less probable than it a lawyer to communicate information to oral testimony and the introduction of would be without the evidence.11 The a jury is through the use of demonstra­ documentary exhibits.3 requirement is met by demonstrative evi­ tive evidence. However, the majority of Demonstrative evidence should be dence which promotes understanding of trial attorneys rely heavily on verbal pres­ distinguished from “real” or Asubstantive other relevant evidence. The verbal testi­ entation when communicating with a fact evidence” which involves the production mony, which the demonstrative evidence finder, whether insurance adjustor, of an object which generally played a aids in understanding, must, of course, defense lawyer, judge or jury. The result direct or indirect part in the incident, itself be relevant to a fact of consequence oftentimes is that the recipient of the e.g., a murder weapon.4 The latter is in the litigation.12 Relevant evidence may information is bored or confused by the admitted into evidence and taken into be excluded, however, if its probative myriad of facts and dates involved in a the jury room while the former is not.5 value is substantially outweighed by the particular case. Demonstrative evidence includes such danger of unfair prejudice, confusion of Psychological studies suggest that things as a model, map, chart, photo­ the issues, or misleading the jury.13 after 72 hours, most people retain only graph, video, X-ray or demonstration. Types of demonstrative evidence about 20 percent of what they see and It is further distinguished from real evi­ 10 percent of what they hear. But their dence in that it has no probative value A witness’s use of visual aids to retention rate rises to 65 percent when itself, but serves merely as a visual aid to explain testimony, particularly in a med­ they simultaneously hear and see the the jury in comprehending the verbal tes­ ical malpractice case, is increasingly com­ facts depicted.1 These figures are espe­ timony of a witness or other evidence.6 mon in a courtroom. A word of caution, cially important when a trial is expected Thus, demonstrative evidence is used however: unless the illustration is essen­ to last several days. Visual presentations only for the purpose of illustration and tial to an undertaking of the testimony, it can communicate more information clarification. is largely cumulative in effect, and admis­ faster and the recipient will retain more Demonstrative evidence may be dis­ sion or exclusion rests theoretically within 14 data with greater accuracy for a longer played and referred to without being for­ the discretion of the trial judge. In period of time. A study by the Poynter mally admitted into evidence; however, it practice, however, the use of models, Institute showed that using color on visu­ is preferable to offer and introduce See Flynn Peterson, Next Page By Kathleen Flynn Peterson — continued from Previous Page January 2010 Issue

drawings and charts is now almost uni­ • Pretrial disclosure screen than with any other medium. versally permitted. • Opening Statements (if admitted One’s attention is captured and held into evidence) longer with a television format than any Models, e.g., skeleton: the advantages other form of communication. are: Photographs Admissibility: Videotapes are admissible • flexible – most have moving parts The old adage, “a picture is worth a on the same basis as photographs and • the jury can touch and interact with thousand words,” has never held more are admitted for illustrative purposes it truth than in a medical malpractice set­ only. Under Rule 1001(2) of the Federal • the jury can use the model as a ting. Once properly authenticated, a photo Rules of Evidence, videotape is included teaching aid is admitted into evidence if it aids the trier within the definition of “photograph.” • Charts and Graphs – the primary of fact’s understanding of a fact of conse­ : The same foundation objectives of a chart or graph are educa­ quence in the litigation.15 However, rele­ required to authenticate a photograph – tion and persuasion. It must convey vant photographic evidence may be testimony that it fairly and accurately information which is understandable and excluded on the basis of unfair prejudice portrays its subject – is required for convincing. or the danger of misleading the jury. authenticating a videotape.17 The best way to communicate with Photos are admitted solely to illustrate the : In addition, a videotape must charts: testimony of a witness and not as substan­ be relevant. Relevance can be determined • sequence of events tive evidence. The following is a list of how by looking at the object depicted. If the • flow and organization photography may best be utilized: judge or jury could appropriately view it • bold, vivid colors • Documentation of a client’s injuries, in person during the course of trial, the if visually apparent. This should be tape is in all likelihood relevant. Blow-Ups/Enlargements done at various stages. Photographs Relevancy Rules of Exclusion: Although Medical Records depicting the client before the injuries relevant, a tape will be excluded if its Once medical records have been should be obtained for comparison. probative value is substantially out­ authenticated and admitted into evi­ • Photographs should be taken as early weighed by the risk of unfair prejudice dence, portions of the record can be read as possible since scars and abrasions or confusion or if it is cumulative or to the jury. In many instances vital seg­ tend to fade over time, especially in unduly time consuming.18 A tape is not ments of the records may be enlarged or children. necessarily prejudicial, however, merely shown by use of a visual presenter. These • Graphic injuries such as open because it tends to arouse the emo­ documents will have much more impact wounds, severed limbs and other grue­ tions.19 Nor is it impermissibly confusing and allow the jury to follow along with some injuries should be photographed simply because the depiction is not the reading of the medical record. both in color and in black and white identical in every respect to the events Enlargements displayed in front of a jury because color photographs may be or conditions at issue in the case.20 are effective because they exhibit infor­ overly prejudicial and, therefore, inad­ Moreover, a tape is not cumulative mation vital to the case’s support; and missible. merely because it portrays something the information exhibited is kept on dis­ • It may be well worth the investment that has been the subject of testimony, play during the testimony thus embed­ to have photographs professionally as opposed to other photographic evi­ ding itself in the minds of the jurors. taken to avoid inadmissibility due to dence.21 Specific portions of the medical record poor quality. Inapplicable: Fed. can be highlighted by using acetate over­ • Photographs taken at a hospital facil­ Rules Evid. § 1001(3) “any print” of a lays and/or laminates which can be writ­ ity depicting a client’s pain and suffer­ videotape is an “original” and thus out­ ten on and erased several times. ing may aid early settlement of a case side the scope of the best evidence rule. Posters before judicial intervention, unless, of Rules Are Applicable: (i.e., Poster-size enlargements mounted course, the medical malpractice must be made available to opposing on foam boards can graphically depict occurred at the same facility. counsel.) the plaintiff ’s injuries in a manner that Foundation: Sufficient foundation for a would have a significant impact on the photograph is laid by testimony of a per­ Advantages of Video jury, quite unlike a small snapshot. son with personal knowledge that the • more persuasive and thus efficient Enlargements should not exceed life- photograph is a fair and accurate repre­ • can be previewed instantly and if the size because they may be objectionable sentation of the subject matter depicted desired result is not reached, it can be as overly prejudicial, thus, inadmissi­ at the time.16 redone ble. • versatility – if the tape is not accept­ Trial attorneys should make use of Videotapes ed by the court, it can be quickly edit­ blowups/enlargements in the following On the average, people are more ed and presented in an altered form instances: comfortable and familiar with a television See Flynn Peterson, Next Page By Kathleen Flynn Peterson — continued from Previous Page January 2010 Issue

• sound – videotapes frequently “poster size.” Under general evidentiary ens trial time which may shorten costs. At include narration principles, an X-ray is admissible if: least one study related to use of visuals in • lasting impression • The X-ray is authenticated, i.e., proof the courtroom found “‘100 percent CAUTION: Be careful not to overplay that the X-ray is a photograph of a party increase in juror retention of visual over videos, as a jury may become desensitized whose injury it is offered to prove; and oral presentations, and a 600 percent after several viewings, as evidenced by the • expert testimony must be offered to increase in juror retention of combined jury’s decision after viewing the video interpret the X-ray. visual over oral presentations alone.’”23 depicting the Rodney King beating. Technique: Some attorneys prefer to uti­ lize X-ray positives. These are easier for Creating the Animation Day-in-the-life Videos juries to relate to because they turn the “Understanding each step involved In many instances the medical mal­ white areas on the X-ray into black areas, in creating animated sequences for the practice case requires a videotape making for example, the bones look solid courtroom is important for every attor­ depicting a day in the life of the injured and any orthopedic hardware clearly dis­ ney and paralegal. It is key to note that party. These videos expose the jurors to tinguishable. the expert or witness testifying to the ani­ the claimant’s daily routines and pro­ Advantages to using X-ray positives: mation’s accuracy must be involved in vide an insight into the claimant’s pain • no light box needed to view them and approve each phase of the process. and suffering and the extent of the • positives can be mounted on foam Depending on the context of each case, injury. The determination of the admis­ boards some steps in the process may be omit­ sibility into evidence of the video is • X-ray positives can be easily duplicat­ ted. Here are the two basic phases of cre­ done on a case-by-case basis. ed ating an animation. Additionally, a videotape may be exclud­ • work well in video depositions ed on the ground that it is overly preju­ • can be labeled and written on Phase One: Planning dicial; that its prejudicial impact out­ • small CT Scans and MRI positives • The first step is to run a conflict check. weighs its probative value. Tapes which can be enlarged and mounted for easy A conflict check is usually done by both are routinely excluded are those which viewing from a distance the animation firm and the firm zoom in for close-ups of agonized gri­ involved. It determines if there are any maces or tears; those which create an Computer Animation conflicts of interest and who can legally unrepresentative view of the injured The most recent type of demonstra­ work on a specific case. party’s condition for any reason. tive evidence is computer animation. • Next, the animator or consultant will Computer-generated animation recreates determine whether an animation is the Videotaped Depositions an accident, event or medical process or smartest and most cost-effective method Videotaping depositions serves to procedure, and allows the jury to see for presenting concepts. To do this they preserve the testimony of the deposed. what happened. The jury views the ani­ will review case materials such as expert This preservation of testimony is war­ mation on a large screen or a television. reports, site evaluations, photographs, ranted where the claimant may be unable Played with a computer rather than a depositions, and related graphics that to have her day in court due to terminal videotape, it can be edited, replayed in have already been completed. To help or severe illness. Videotaped depositions certain sections or edited if necessary to with the evaluation a statement of the are also common when the deponent will meet any of the courts’ concerns about intended purpose of the animation and be unable to testify live in a courtroom. admissibility. general budget information should also Animation allows the judge and jury be exchanged. An evaluation is usually X-rays, CT Scans, MRIs to retain key concepts. “Without anima­ done for free or for a nominal fee. Because X-rays show images not visi­ tion, jurors listening to an oral presenta­ • Once it is determined that animation ble to the naked eye, they require foun­ tion may create their own differing ver­ will be used, attorneys, experts, and an dational proof to establish the correct­ sions of the process or event. . . . [W]ith animation consultant should meet to dis­ ness of the portrayal. This requires an animation, all the jurors see the exact cuss potential scenarios in the case and expert, usually a radiologist, to explain same event at the same time and to some points on which the animation should be the information displayed. The expert degree become .”22 focused. The goal is to develop a clear draws a comparison to what she saw With animation the jurors see picture regarding the content of the ani­ through a fluoroscope or by proving processes as they develop step by step. mation, to identify what is expected from skill in X-ray techniques, proper working Sometimes animation is the best and only each person involved and to set dead­ conditions and accuracy of the equip­ way to explain spatial relationships and lines. In addition, preliminary produc­ ment, manner of taking the picture, and complex time processes. Animation can tion schedules are created, contact infor­ correctness of result based on experience. also condense difficult and boring testi­ mation is shared and a preferred method X-rays are commonly reproduced photo­ mony into a more effective and shorter of correspondence is determined. graphically and enlarged to “blow-up” or presentation. Shorter presentation short­ See Flynn Peterson, Next Page By Kathleen Flynn Peterson — continued from Previous Page January 2010 Issue

• As the last step in the planning phase, animation is completed and camera “fairly and accurately depicts what it rep­ an animation consultant should provide a moves are set. resents, whether through the computer written estimate containing an outline • During the production process, it is expert who prepared it or some other stating the work to be performed and its important to view the animation as it witness who is qualified to so testify, and completion schedule; the cost of the pro­ plays in real-time, via a transfer process the opposing party must be afforded an posed animation; information detailing called rendering, in which animation opportunity for cross examination.”30 fees for revising or adding to the anima­ data is converted into a series of still Steps should be taken well in tion beyond what was originally pro­ images, called frames. For each second of advance to avoid objection at trial as to posed; estimates of the cost for proposed animation, 30 individual images are cre­ admissibility, relevance, and/or . alternate animation sequences; and ated. A video can then be created from The intended use of animation should be details regarding the preferred video for­ those still images. To hasten this process, disclosed early. Research admissibility mat. This written estimate should be a large number of dedicated computers issues in your jurisdiction. Lay your foun­ treated as a after it has been called a rendering farm usually does ren­ dation carefully with the animator and/or approved. dering. the witness through whose testimony you • After rendering, there may be a num­ intend to introduce the animation. You Phase Two: Creating ber of processes needed to finalize the should avoid any unsupported or • The creation of storyboards is the next animation during post-production. extreme imagery. step. Storyboards are typically a series of Frames or video may be edited for timing Other things which may torpedo the hand-drawn, still images with written and content, and certain elements may use of animation are misrepresenting the details about the action, content, and be highlighted to draw more attention. facts, poor data, exaggerated imagery camera viewpoint below each image. Titles, labels and captions can be added and unsupported visual outcomes. Any of Storyboards are used to resolve any prob­ to identify objects and processes of inter­ these will almost guarantee that the ani­ lems with the animation before they est. Still images, graphics and video may mation will be excluded. Because anima­ become too expensive or difficult to fix. be inserted to add realism and credibility. tion takes a long time, it would be wise to Storyboards also ensure that key points • The last step is outputting the anima­ start the process early. If an effective ani­ are covered and the content is laid out in tion to the preferred delivery media (CD, mation is done early in the process, the most effective manner. They should DVD, hard drive, or VHS) and video for­ showing it to defense attorneys may assist be approved by all parties before produc­ mat (AVI, MPEG-1, MPEG-2, MPEG-4, in the settlement of the case. The use of tion begins. Once approved, storyboards or QuickTime).”24 an animation will probably require a spe­ become the guide the animator uses to Costs of Animation: An animation can be cific jury instruction. For example: create the animation. Note that in some extremely expensive so one must be care­ This animation is not meant to be a instances B for example if expert reports ful in weighing the costs and benefits. An recreation of the events, but rather are not finished when the animator animation of a single process can cost a consists of a computer picture to help begins working, or if the scope of the few thousand dollars or go to six figures. you understand Mr. Jason’s opinion case is expected to change B storyboards Federal courts are reluctant to allow taxa­ which he will, I understand, be giving are not created. tion of the costs of animation.25 later in the trial and to reinforce the • The next step, modeling, involves cre­ Admissibility: In most states the admissi­ point, the video is not meant to be ating every object that resides within the bility will be at the trial court’s discretion exact recreation of what happened dur­ 3D environment on a computer. An ani­ and subject to adequate foundation that ing the shooting, but rather it repre­ mator typically must create each model it accurately portrays its subject.26 The sents Mr. Jason’s evaluation of the evi­ by hand. When possible, it is sometimes animation will be admissible only when it dence presented.”31 faster and more cost-effective to laser is “authenticated, relevant, and not 27 Conclusion scan an original object. As part of model­ subject to an exclusionary rule.” ing, textures and basic lighting are added of the animation will be It is vital that you fully explore the to the environment to give a better pic­ “accomplished by showing that the evi­ liability, causation and the repercussions ture of what the final product will look dence in question is what its proponent of the injury your clients have suffered, like. claims.”28 Animations are very powerful in pursuing your case. While I have given • Animating, the process of making the and as a result the trial court should you some guidelines to follow, as you pre­ objects or point of view move over time, “carefully and meticulously examine the pare your case, keep an open mind and comes next. This can be done by hand, proposed animation evidence for proper be creative in how you “show” how your based on expert or witness descriptions, foundation, relevancy and the potential client’s life has been forever changed by from actual recorded data in evidence, or for undue prejudice. Normally the trial the defendant’s negligence. As your by using data created by experts or simu­ judge should review the video outside of client’s “voice,” you are charged with the lation programs over the course of the the jury’s hearing.”29 The side using ani­ responsibility and challenge of assisting investigation. Lighting is finalized after mation must show that the animation See Flynn Peterson, Next Page By Kathleen Flynn Peterson — continued from Previous Page January 2010 Issue

the trier of fact in finding liability and 20 Radtke v. Cessna Aircraft Co., 707 F.2d 999, 1002 (8th Cir. Handrigan, Brian D., “Multimedia: The Litigation Tool of the causation and quantifying the value of 1983). ‘90’s, Mass Law. Wkly., April 12, 1993, at S5, S5. 21 State v. Brooks, 30 Wash. App. 280, 633 P.2d 1345, 1348 the losses suffered by your client. By fully Herrera, Frank Jr., Rodriguez, Sonia M., “Courtroom (1981). exploring how your client has been Technology: Tools for Persuasion,” Trial, May 1999. affected by their injuries, you can tell a 22 Chad Amborn, “Computer Animation in the Courtroom” p. 22 Minnesota Trial, Spring 2008. Jew, Rodney, Peterson, Martin Q., “Envisioning Persuasion: story that will support your client’s dam­ 23 Painting the Picture for the Jury,” Trial, October 1995. ages and will lead to fair and substantial Ibid. awards for their losses. 24 Id. at pp. 42-43. Lassiter, Mark E., “Multimedia Trial Presentation Systems Win Cases,” Nat’l L.J., Oct. 10, 1994. Kathleen Flynn Peterson is a partner in 25 Kohus v. Costco, Inc., 282 F2rd 1355 (Fed. Cir. 2002); Arcadian Fertilizer v. MPW Industrial Services, Inc., 249 F3d the national law firm of Robins, Kaplan, Lueck, Martin R., Schutz, Ronald J., “Educating the Jury: The 1293 (11th Cir. 2001) Miller & Ciresi L.L.P. She is Chair of the Multimedia Way,” New York Law Journal, Oct. 23, 1995. Personal Injury and Medical Malpractice 26 Mintan v. State, 966 P2d 954, 958-59 (Wyo. 1998). Plowman, Julie K., “Multimedia in the Courtroom: Valuable Tool 27 Group. Ms. Flynn Peterson represents individ­ Id. at 959. or Smoke and Mirrors?,” 15 Rev. Litig, 415, Spring 1996. uals and families who have experienced injury 28 Ibid. Romano, Lillian, “Litigation Made Easy: Using Multimedia or death as a result of medical negligence. 29 Robinson v. Missouri Pacific Railroad Company, 16 F.3d Technology in Court,” Mich. Law. Wkly., June 6, 1994. She served as president of the American 1083, 1088 (10th Cir. 1994). Association for Justice from 2007-2008. 30 Friend v. Time Manufacturing Company, 2006 Shartel, J. Stratton, “Jury Response: Technology Revolutionizes WL2135807(d). Arizona at *7. Trial Preparation,” 8 No. 5 Inside Litig. 34, June 1994. Footnotes: 31 Hinkle v. The City of Clarksburg, 81 F.3rd 416, 425 (4th Cir. Tobey-Smith, Tern, “The ‘Paperless’ Trial: Facts Versus Fiction,” 1 WEISS-McGRATH REPORT FOR McGRAW-HILL. 1996). N.Y.L.J., July 17, 1995. 2 Thurman v. Bertram, 20 Alb. L. J. 151, where a baby ele­ Turner, Marshall S., Houghton, Andrew T., “In With the Old, in phant was brought into one of the English courts, is recited in With the New: Interactive Animations Are Wave of the Future,” The Indiana Car Company v. Parker, 100 Ind. 181, 199 Bibliography N.Y. L.J., Feb. 16, 1993, at Si, Si. (1884). Bailey, William S., “Using Computer Technology to Prepare for 3 GRAHAM, HANDBOOK OF FEDERAL EVIDENCE, § 401.2 at Trial,” Trial, April 1998. Vandagriff, David P., “Why Techshow is Worth Your Hard- 349 (6th ed. 1991). Earned Money,” Compleat Law., Winter 1994. 4 Id. at 149. Baker, Debra, “Electronic Future is Now,” ABA Journal, May 1998. Volokh, Eugene, Technology and the Future of Law: Law in a 5 Minn. Stat. § 546.15 (2000) (allows the jury to take with Digital World. By M Ethan Katsh. New York: Oxford University, them all papers received in evidence). Bennett, Robert B. Jr., Leibman, Jordan H., Fetter, Richard E., 47 Stan. L. Rev., 1375 (July 1995). 6 McCORMICK, EVIDENCE § 212 at 668-669 (3rd ed. 1984). Seeing is Believing; or is it? An Empirical Study of Computer Simulations as Evidence, 34 Wake Forest L. Rev. 257 (Summer Wilson, Clyde H. Jr., “The High-Tech Trial: A Plaintiff’s 7 Ibid. 1999). Perspective,” 9 No. 1 Inside Litig. 12, January 1995. 8 Fed. Rule Evid. § 403. Bernstein, Paul, “Graphics in the Courtroom C A.D.A.M. 29 Am. Jur. Evidence, Active Demonstration to Show Effect of 9 Ibid. (Animated Dissection of Anatomy for Medicine),” Trial, June Injury, § 953 (1994). 10 Wyo. Rules Evid., rule 403. 1994. 71 Am. Jur. , Computer Technology in Civil Litigation, § 11 Wyo. Rules Evid., rule 401. Berry, George E. & Daniels, Richard L., “Automation Comes to 111 (1999). Court,” Nat’l L.J., Jan. 30, 1995. 12 GRAHAM, HANDBOOK OF FEDERAL EVIDENCE, § 401.3 at John Afrides, Demonstrative Evidence in the Management and 352-54 (6th ed. 1991). Collins, Cindy, “Technology Advance...Rejection of HTML Brief Trial of a Medical Malpractice Case, 396 PLI/Lit. 361 (1990). 13 Wyo. Rules Evid., rule 403. Just Temporary Setback, Experts Say,” 11 No. 6 Inside Litig. Michael H. Graham, Handbook of Federal Evidence: 14 17, June 1997. Ibid. Demonstrative Evidence, § 401.2 at 148 (3rd ed. 1991). 15 MCCORMICK, EVIDENCE § 214 at 671-75 (3rd ed. 1984); Corboy, Philip H., “New technology may boost the jury’s role,” Wyo. R. Evid. § 1001 (2). Trial, October 1995. Michael H. Graham, Handbook of Federal Evidence: Demonstrative Evidence — ‘Seeing is Believing’, 10 Am J. Trial 16 Ibid. DePompa, Barbara, “Multimedia Isn’t the Message — Business Advoc. 109 (1987). 17 Hendricks v. Swenson, 456 F.2d 503, 506 (8th Cir. 1972). Users are Looking for Substance Rather Than Style,” Information Week, July 19, 1993. McCormick, Evidence § 212 at 668-669 (3rd ed. 1984). 18 Wyo. Rules Evid., rule 403. 19 Hahn v. Tri Line Farmers Co-op, 478 N.W.2d 515 (Minn. Ct. Elrich, David J., “Have a CD-ROMp: Multimedia PCS Let You McCormick, Evidence § 214 at 671-675 (3rd ed. 1984). App. 1991). Roam Through Time, Space, Your Telephone and TV,” Austin Am.-Statesman, Jan. 25, 1995, at B5, B5. Weiss-McGrath Report for McGraw-Hill.