By Kenneth J. Lopez, J.D. President & CEO Animators
at Law, Inc
When you think about using computer animation, think admissibility at
the same time. If you plan the animation and plan the foundation
for admissibility properly, your animation will be admitted. Our firm
follows a standard methodology under the Federal Rules of Evidence,
and we have a 100% record of admissibility. This article describes that
methodology in a six easy steps.
Let's start by looking at what can go wrong. In the reported case Somervold
v. Grevlos where one cyclist sued another in negligence, the defendant
attempted to use computer animation to illustrate the accident reconstruction
expert's testimony. The judge did not admit the animation based upon
a number of avoidable mistakes. For example, the animation was constructed
using an assumption that both riders were traveling at 25 miles per
hour when in fact other evidence suggested that the rider's speeds varied
between 28 to 40 miles per hour.The glow from a streetlight was inaccurately
depicted as being in the shape of a circle rather than an ellipse.Also,
the animation placed the riders in a spot that was west of the actual
location of the accident and erroneously depicted the injuries sustained
by the riders.This outcome could easily have been avoided.
Computer animation, like other forms of tangible evidence, must pass
muster under the Federal Rules of Evidence. Most state rules are very
similar as they apply to animations, but you will want to review your
local procedures. When discussing the admissibility of computer animation,
one must begin by distinguishing animations from simulations. A computer
simulation is a prediction or calculation about what will happen in
the future given known facts. An example would be the use of known rates
of fluid absorption to predict how a certain toxin will spread through
the environment. The standard of admissibility is very strict for simulations
because of their substantive nature.
If your expert suggests the use of a simulation, you should consider
carefully whether it is necessary. The foundation for a simulation requires
that one qualify some type of industry accepted software that is used
to convert the data into the simulation, as well as all of the other
steps applicable to animations hereafter described.
Rather than predicting events, an animation is normally a short computer-generated
movie illustrating a person's opinion. In the spectrum of the admissibility
of visual evidence, animation rests in the middle ground. It is more
difficult to qualify than an engineering drawing, but easier to qualify
than a simulation. An animation does not attempt to reach conclusions
of its own, as a simulation does. It simply illustrates or supports
the testimony of a witness, usually an expert. Since every aspect of
the animation is supported by either testimony or fact, it is much more
likely to survive intense cross examination.
The first step in ensuring that the animation is admitted is to engage
a good expert whose testimony the animation will support. Have that
expert participate in the planning for and review of the animation. The
expert needs a credible basis to vouch for the animation as an accurate
representation of his or her opinion. The choice of expert is critical
to the credibility of the case and therefore has an immense impact on
the admissibility of the animation. Under Rule 702 an expert used to
explain evidence must be qualified to do so through skill, training
or education. An example might be to use an accident reconstruction
expert in the case of an accident, a physician in a medical malpractice
suit or an engineer in a patent suit.
The second step is selecting the proper animation firm. When shopping
for the proper professional, asking the right questions at the start
can be the difference between a successful outcome and a complete disaster. The
attorney should understand how the animation will be produced, the qualifications
of the personnel at the animation firm, and the firm's ability to deal
with terms and concepts involved in the case. The attorney should
ask specifically what type of hardware and software is being used.
It is important that the animation firm uses workstation-quality computers.
While animation can, in recent years, easily be produced on a home PC,
doing so gives opposing counsel fodder to challenge the accuracy of
the animation. Products produced by Silicon Graphics are a good example
of workstation-quality computers and are rarely subject to challenge.
After all, their use in such Hollywood films like Jurassic Park is well
known.
When inquiring about the software used by animation firms, be aware
that the best choices are products from Wavefront and Alias. While there
are many choices in the software market, these are premium animation
software packages. Like the Silicon Graphics workstations, they are
rarely challenged, and, very likely, if the firm is using Silicon Graphics
workstations, then they are using one of these.
The animation expert may be deposed and may have to testify in court. Thus,
make sure that this professional is someone the fact finder will feel
comfortable with. The animation expert may have to authenticate
the animation under Rule 901(b)(9). The creators of the animation
must be prepared to face scrutiny concerning the methods used and the
theories underlying the finished product. Any inaccuracies found in
any part of the data creation can be used to discredit the animation.
The attorney should keep this in mind when choosing a firm. Finally,
one should inquire about the firm's record of admissibility.
The third step is to give adequate pretrial notice. The discovery rules
in a particular local jurisdiction may provide for identifying trial
exhibits shortly before trial. If you rely on that type of rule, designed
for the ordinary documentary exhibit, you are likely to be faced with
a successful motion under Federal Rule of Evidence Rule 611(a) which
allows the court to exclude the animation if the opponent has not had
proper notice and an opportunity to prepare a cross examination. Do
not attempt to hide the fact that you are using an animation even if
it is not covered in the discovery request. Computerized information
can be particularly complex and difficult to evaluate without advance
preparation. For that reason, objections based on "surprise"
or unfair prejudice under Rule 403 will often succeed if your opponent
has less than 90 days notice. Giving proper pretrial notice allows the
opposing attorney the opportunity to secure an expert and, possibly,
to create an animation of his own.
The fourth step is to make adequate disclosure. The attorney seeking
admission of an animation is required to turn over virtually every facet
of the animation. In order to ensure admissibility, one must identify
the expert who will be testifying on behalf of the animation, the producer
of the animation itself, the hardware and software used to construct
the animation, and all data used to create the animation. Because animation
is considered a summary under Rule 1006, the court may demand that all
materials including the computer files making up the animation be produced
for your opponent and in court regardless of the coverage of discovery
requests.
The fifth step is to be prepared to lay the foundation without hesitation
through proper questions and answers. This part of your preparation
probably should rest on full written notes, so that nothing is left
out. You must qualify seven things: the expert, the computer hardware,
the computer software, the data, the quality checking operations, the
assumptions used by the expert, and the presentation media. After qualifying
the seven elements, the expert must testify that the animation accurately
represents the results of his or her work.
The sixth step is to be prepared to meet all available objections. Again,
this part of your preparation probably should be written out so you
can satisfy yourself that the explanation is valid. Prepare to meet
the objection that no adequate foundation has been laid. Go over
the requirements of Rule 901(b)(9) and show how each has been met. Remember
that your opponent has the burden of establishing the weakness in the
foundation by voir dire, and consider whether to challenge him or her
proceeding in this manner. Prepare also to meet the hearsay objection
by establishing the basis for the exception in Rule 703 or some other
relevant exception. Additionally, be sure not to forget about the
possibility of original document objections under Rule 1001 et seq.
Finally, be sure you write out an eloquent defense against the policy
objections that will be made under Rule 403.
Every attorney can successfully utilize the latest computer animation
technology. The evidence rules governing animations are straight forward
and compliance is easily measured. With this checklist completed successfully,
your animation will be admitted. If you wish to do further research
on this subject, Animators at Law recommends Tangible Evidence, a book
in the National Institute of Trial Advocacy's Practical Guide Series
by Deanne C. Siemer.
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