We all know the statistics: Jurors retain about 20% of the content of evidence presented from oral testimony alone. But when oral testimony is combined with illustrative demonstrative evidence, such as graphs, pictures or blow-ups of documents, jurors can retain up to 80% of the evidence being offered. Hunt, Litigation News, Use of Videotape in Opening Statement (May 1997); Bernstein, Lawyers Alert, Presenting Time Lines (June 1992). In other words, at every opportunity we trial lawyers must use overheads, charts, pictures and graphics to enhance, explain and summarize our witnesses. testimony as well as our argument.
Computer-generated graphics, displayed over large television-like screens, provide one of the best opportunities to present demonstrative evidence. There is no better way to reach a jury than with accurate, well-thought out computer graphics and animations that focus on the core issues, persuade the jury and dominate the opponent.s evidence. Computer graphics can take virtually any form -- from simple charts to lengthy, multi-level animations -- with the trial lawyer acting as producer and director. They force the opposing party to react and attempt to rebut your evidence, instead of focusing on their own case. Strong demonstrative evidence enables you to "control the middle of the court" with your client and your case being the focus of the jury.s attention.
Despite these benefits, computer graphics are not always extensively used, due primarily to the time pressures of trial preparation and the cost. We suggest using your law firm.s own resources -- desktop publishing and MIS -- to produce computer graphics in-house. Not only will it cost much less than using an outside vendor, the results will be better because of the trial lawyer.s central role in the development process. And with the myriad of sophisticated software publishing programs now on the market, you can achieve amazing results in-house.
The Do-It-Yourself Process.
Since 1991, we have produced 6 in-house computer animations that have been presented in trade secret and patent jury trials, and an arbitration involving airbags. Most recently, in a trade secret trial in March 1996, we presented three simple but powerful animations illustrating key testimony of the inventor-client. Through the use of diagrams supported by multiple levels of admissible information accessed through clicking on the screen, we orderly and logically presented stacks of documentary information in 20 to 30 minutes of the client.s testimony.
Our most challenging animation came in a patent trial involving our client.s hearing aid design. Ultimately, we presented an interactive animation with five different segments, with each segment having five to ten interactive screens. Different segments were used first with the inventor and then with the expert, and brought together during closing argument. The animation illustrated why hearing aids are needed, how they work, development of digital hearing aids, our client.s design, the defendants. design, and finally a comparison section depicting our theory of infringement.
The development process for this animation took approximately two months. First, the trial lawyer mapped out her themes for the animation. Next, several meetings were held with the trial lawyer, the inventor and two in-house graphic artists who had produced other animations. These planning meetings are essential to a successful final product since once programming begins it is very difficult to redo basic approaches. The graphic artists then began to produce "story boards," drawings that depict each variation in the animation. After approximately 5 weeks and almost 80 revisions of the story board, the trial team, inventor and expert were satisfied by the 50 proposed screens -- all before any programming was commenced.
Programming took the next three weeks, with a free lance artist and an audio expert assisting the two in-house graphic artists. The trial lawyer consulted on a daily basis, reacting to each of the key design decisions and constantly trying to achieve greater accuracy. Weekly meetings were held with the inventor and the expert.
The final result was a distilled "movie" of the key themes in the case -- the themes the jury needed to accept in order to find infringement. The animation became a centerpiece of the trial, illustrating the witnesses. testimony and summarizing the case during closing argument. The jury agreed with the premise of the animation and found wilful infringement by the defendant.
The animation cost the client approximately $75,000 and took 400 hours of work by the graphic artists and 80 hours of the trial lawyer.s time. The same animation produced by an outside vendor would have cost two to three times as much. More importantly, an animation by an outside vendor would not have been nearly as effective since the trial lawyer and the client could not have directed every step of the process.
The Possibilities Are Endless.
Computer graphics provide the trial lawyer with the opportunity to create the best medium for his or her evidence. Brainstorming with a talented graphics artist skilled in computer art will yield many different options.
At their simplest, computer graphics can be used to create relatively simple charts and graphs. Complicated information that is authenticated and presented by a key witness can be visually incorporated into a colorful chart. In one case, an oversized multi-color chart summarized crop damage incurred by nursery trees, using different sized trees to depict the actual percentage of saleable trees in comparison to the expected saleable percentage shaded behind. In another matter, voluminous medical records from 12 doctors were summarized by identifying the key symptoms on a series of human figures. In each situation, the trial lawyer can work with the graphic artist "down the hall" to assure the most admissible and most persuasive presentation of the evidence.
Beyond charts and graphs, computers allow organization and logical presentation of voluminous information that would become tedious if presented through a witness by discussing and displaying one document at a time. The "old fashioned way" lacks the visible building of the evidence toward the conclusion you are presenting. For example, suppose your client is accused of stealing trade secrets instead of performing its own painstaking and time-consuming development work. With the guidance of your client, you design a computer-driven development time line. As you click on each development period, the computer can reveal each key document or product component produced during the period, the number of employees or development hours devoted to the project, and the amount of money spent on development. As you gradually fill in the computer screen from the start of the business through trial, jurors will see and better remember the client.s development effort and thus be more willing to accept your theme that the company.s intellectual property derived from hard work, not theft.
Finally, computer graphics can evolve into sophisticated animations with interactive responses depending upon variations selected by the operator. In the hearing aid patent case, the animation demonstrated the digital flow of information and its ultimate storage in a EEPROM. This fundamental similarity between the patented design and the defendants. product, as demonstrated by the circuitry flow in the animation, established the foundation for infringement. The most sophisticated animations can model an explosion depending upon assumed variables, or depict in three dimensions the delivery of digital telecommunications signals. In essence, computer graphic evidence can take whatever form the trial lawyer deems most accurate and persuasive. The key is not to attempt to transform the jury into experts on the technical or business issues of your case, but to hammer-home -- with testimony and supporting visual graphics -- the key themes required for a verdict for your client.
The most sophisticated computer animations, incorporating three-dimensional video or sophisticated audio files, for now are probably beyond the reach of most law firm computer resources. However, as discussed in the next section, the components required for most trial graphics and animations already are available from off-the-shelf software graphics packages and medium-priced graphics computers.
You will need a desktop multimedia computer: either Macintosh or Intel/Win 95 with a big, fast hardrive and at least 32 megabytes of RAM. Graphics files can become quite large so the more RAM the better. You.ll also need a color flatbed scanner for scanning graphics and source material and a Zip or other drive to back-up and transport your files. Most in-house graphics departments will already be equipped with this type of hardware.
For software, you will need graphics programs for storyboarding, animating, programming interactivity and creating the art. The storyboards can be created in a page layout program such as PageMaker or a drawing program such as Adobe Illustrator. Using these types of programs, the artist can create small "key frame" depictions of the proposed screens with text descriptions next to each frame. When it.s time to create the actual animated exhibit, the software you should use depends on the scope of the exhibit. For minimal interactivity, Microsoft Powerpoint works fine. For more involved presentations, we like to use Macromedia Director which creates fairly sophisticated two-dimensional animations. Although Director has a module for painting images, most computer artists will want to create the art in a program like Adobe Photoshop and then place this art back into the Director file to be used as a background or an element to be animated.
Who do you hire to create these interactive exhibits?
Computer graphic artists with a background in multimedia production such as interactive CD ROM titles are your best bet. If you already have an in-house graphics department and they don.t know how to use Director, you might think about signing them up for a course. If you have in-house staffers that do programming, they should be able to help with the Director.s programming.
Introduction of demonstrative evidence at trial lies within the discretion of the trial judge under Evidence Code section 352 and Rule 403 of the Federal Rules of Evidence. The California Supreme Court, in upholding the admissibility of a videotape reenactment of a crime, found that the trial court must weigh whether the demonstrative evidence is a "reasonable representation of that which it is alleged to portray" and whether it "would assist the jurors in their determination of the facts." People v. Rodrigues, 8 Cal.4th 1060, 1114 (1994).
Recent case law has approved the use of computer graphics and animations at trial. In People v. Hood, 53 Cal.App.4th 965 (1997), the court rejected the argument that illustrative animations must be tested by the scientific evidence standard of People v. Kelly, 17 Cal.3d 24 (1976). The court found that the "animations were tantamount to drawings by the experts from both sides to illustrate their testimony. We view them as a mechanized version of what a human animator does when he or she draws each frame of activity, based upon information supplied by experts, then moving through the frames, making the characters appear to be moving." As long as the "reasonable representation" test is met and the judge admonishes the jury that the animation is merely illustrative of an expert.s opinion and not an exact recreation, the animation should be fully admissible.
The Tenth Circuit, in Robinson v. Missouri Pacific R. Co., 16 F.3d 1083 (10th Cir. 1994), upheld the trial court.s admission of a videotape animation of a train crash, finding that it adequately represented the events and the expert.s opinion. The appellate court added that, since animations are a new and powerful tool, courts should closely exercise their "gatekeeper" function under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to ensure "the evidentiary relevance and reliability of the principles that underlie the submission."
Where a sophisticated computer animation purports to recreate an event and then yields results on which the expert relies, the evidence arguably is transformed from mere illustrative demonstrative evidence into scientific evidence. In this scenario, the expert.s underlying assumptions and methodology may have to meet the more stringent tests of People v. Kelly or Daubert.
Make Sure The Judge Will Let You Use It.
Given all of the work and expense that you will go through to create the most persuasive form of computer evidence, you need to be sure that the jury and judge will see your graphic or animation.
First, identify the witness who will present the animation and outline the testimony to be reinforced by the computer evidence. Discuss the issues with the witness. Make sure the witness is included in each step of the development process and that he or she participates in each fundamental decision about the presentation. In this way, your witness will lay the foundation for admissibility: demonstrating the relevance of the computer graphic and addressing why the evidence is a "reasonable representation" of the events at issue.
Next, rely only on evidence that you know will be admissible at trial. Plan how you will have each piece of supporting evidence introduced and admitted before any use is made of the animation. If you rely on questionable evidence, your entire computer presentation is at risk.
The trial lawyer must stay involved in each step affecting the content of the presentation. The most effective demonstrative evidence persuades through factual presentation, not argument. Get rid of any argumentative headings or risky presentations, and stick to the documents, testimony and other admissible evidence. Lead the jury to your conclusion through the strength of the facts presented.
Put together an evidentiary brief explaining how the animation was prepared and why it is fully admissible. If a strong objection is raised, the brief will be waiting in your trial notebook. Also, just in case, have your in-house computer technician available to testify as to data entry and programming. (But see Hood, supra, indicating that no testimony by the programmer should be required.)
Finally, develop a plan as to when the animation will be disclosed to the other side. If an expert will testify to the animation, he or she should probably discuss it in the expert report and be prepared to demonstrate the animation at deposition. If the computer evidence is more in the nature of an illustrative graphic, make sure you have written agreement with opposing counsel as to the timing for disclosing demonstrative evidence and meet those requirements.
Different judges will treat computer evidence differently.
Some judges refuse to admit demonstrative exhibits into evidence although witnesses and attorneys can make full use of them during testimony and even in closing argument. Also, the timing of pretrial disclosure of exhibits may preclude you from offering a graphic as an exhibit. At trial, the only real distinction between having your computer evidence admitted into evidence or simply marked for demonstrative purposes is that unadmitted evidence will not be permitted in the jury room. Given that most jury rooms won.t have a computer, this may not be a big drawback. If you do succeed in having a computer animation admitted into evidence, remember that it must be offered as part of the record, perhaps loaded on a Zip or other back-up cartridge. Finally, if your computer graphic is carefully crafted and avoids argument, you may be able to use it in opening statement. In this way, you can use the graphic as a visual aid during your opening as well as a preview of the blockbuster animation that you will present during the testimony.
Computer-generated evidence offers a new arena for presenting evidence at trial in the most persuasive manner. By developing the capability to produce computer graphics and animations in-house, trial lawyers can provide their clients with the most effective demonstrative exhibits at a greatly reduced cost.
Reprinted from Association of Business Trial Lawyers