If a picture is worth a thousand words, then a moving picture is worth a hundred thousand words. Courtroom animations are revolutionizing the way modern trial lawyers present cases. While increasing numbers of trial lawyers spice up trial presentations with animations, many are reluctant to do so because they are concerned about costs and admissibility. This article discusses how to: (1) use animation; (2) avoid mistakes which can lead to exclusion; and (3) keep the costs of creating an animation to a minimum.
THE USES OF ANIMATION
A. What is Animation?
We have all seen animation in its original form - cartoons. The first animators created their animations by drawing a series of pictures, each slightly different from the preceding frame, and then playing each frame rapidly, one after the next to create an appearance of movement. Obviously, the cost of drawing so many frames was enormous, and the cartoon was only two dimensional. With the advent of powerful computers and software, modern animators can create three dimensional animations for less cost than creating two dimensional cartoons. A 3-D animation not only allows us to look at the front of an object, but also allows us to look at the back, the underneath, or even the interior. Once the animator has created the animation, the angle can be manipulated by moving "the camera" from one spot to another.
B. Why Use Animation?
Studies show people remember little of what they hear. They are much more likely to recall what they see and even more likely to remember what they both see and hear. Therefore, a jury will probably recall only a small portion of what an expert says, especially when the expert uses complex technical terms or attempts to describe abstract concepts. However, if the expert uses visual aids, the jury is much more likely to both understand and recall his or her testimony.
Because animation can highlight critical aspects of a case to help a jury understand key issues and remember facts, animation has become an important weapon in the trial lawyer's arsenal. In many types of cases, such as automobile accidents, patent infringement, construction defects, aviation and toxic tort cases, the issues in dispute involve concepts of motion. Automobile cases almost always involve issues of time, speed, distance and visibility, concepts which are often difficult to explain using a static photograph or a chart depicting a split second in time. Animation can show a jury how an accident happened, how a mechanical device functioned or failed to function, how a landslide occurred, why a plane crashed or how pollution spreads.
In addition to illustrating concepts in dispute, animation keeps otherwise bored jurors interested in the case. For example, the author of this article has given many attorney seminars on the use of demonstrative evidence at trial. During the lecture portion of these seminars, some attorneys focus their attention on work they have brought with them or on eating their lunch. However, the minute the animations begin, everyone focuses their attention on the television screen. If animation has such an appeal to lawyers, imagine the attention-grabbing effect it has upon the ordinary juror.
C. Impact of Animation
The most vocal critics of animation are concerned that animation does not merely imitate reality, it becomes reality for the jury. For example, it is impossible to bring a jury back in time to actually witness an accident. Yet a well-conceived and substantiated animation can substitute for the reality of the accident. When the animation is played repeatedly, jurors are more likely to conclude the accident must have happened as depicted. During deliberations, they forget much of what was said and remember the animation best. Because animations can have such a substantial impact upon a jury, it is important to create these animations with an eye toward fairness and admissibility.
D. Use of Animation in Automobile Cases
In virtually every automobile case, issues arise regarding speed and distance and often include concepts of visibility and reaction time. Prior to the advent of animation, attorneys and experts were forced to rely upon charts and/or models. Often, the charts depicted obscure time and distance references such as T1, T2, T3, etc., which confused jurors. Ironically, in cases involving issues of motion, most of the demonstrative evidence consisted of static photographs and charts. While video demonstrations helped clarify certain issues, the use of video itself created certain evidentiary problems.
Animation has become the ultimate trial tool for automobile accident cases. Instead of telling jurors what happened, attorneys and their experts can show jurors exactly why and how the accident happened. If attorneys comply with evidentiary rules, they can show jurors the accident from any view the attorney believes will assist the jurors in understanding the issues, such as a bird's eye view or a side view. One of the most important views lawyers use is that of one driver or the other (or both), as well as the perspective of an injured pedestrian. In a case which went to trial approximately one year ago, a careful plaintiff's attorney was able to show that a large tree blocked the view of an underinsured motorist so he could not possibly see the plaintiff prior to her entering a crosswalk. Using animation, the attorney showed a top view and side view depicting the accident, and then showed how the plaintiff pedestrian and the truck driver were incapable of seeing each other because the tree blocked each person's view. This presentation helped jurors understand why the city was liable for the accident.
In another case, a motorcyclist and a dune buggy climbed the hill from opposite directions. Neither driver was able to see the other until they reached the top simultaneously. Unable to stop, the dune buggy struck and killed the motorcyclist. Plaintiff's counsel contended that had the dune buggy's manufacturer incorporated a warning flag into the dune buggy's design, the motorcyclist would have seen the flag and could have avoided the accident. Defense counsel used an animation to show that due to the angle of the hill, the absence of a flag was irrelevant because the slope of the hill would have prevented the motorcyclist from seeing the flag. Faced with irrefutable evidence, the jury had no alternative but to find for the defense. Plaintiff's counsel had to make an argument similar to the one once made by Groucho Marx: "Are you going to believe me or are you going to believe your own eyes?" Given such an alternative, jurors will always believe their own eyes.
In yet another case, plaintiff motorcyclist was injured when he lost control of his motorcycle and crashed into an oncoming vehicle. Plaintiff contended that a landowner adjacent to the street overwatered the property, causing unusual puddling to accumulate on the road, thereby creating a slick and dangerous condition. The landowner's attorney contended the puddle did not cause the accident and plaintiff was injured while he was racing against other motorcyclists. The defense argued plaintiff lost control of his motorcycle when he was trying to pass another racer at a bend in the road. To show its theory of the case, the defense created an animation featuring a bird's eye view of traffic. From the animation, based upon skid marks and photos taken after the accident, it is clear that the motorcycles are moving much faster than the surrounding traffic. Using slow motion, the defense expert showed plaintiff navigated through the puddle without any problem, but lost control at a bend in the road approximately 100 feet past the puddle. The animation was convincing, and the case ultimately settled.
E. Jury Acceptance of Animation
Many attorneys erroneously assume jurors will be skeptical of animations or believe an animation is overkill. From anecdotal reports, the reverse is actually true. Jurors tend to view parties using animations favorably. They believe that if the animation were not accurate, it would not be admitted and that the attorney presenting the animation must have a strong belief in his or her case. Attorney credibility also increases because the case presentation looks more professional, especially when compared with one that does not include sophisticated audiovisual techniques. Moreover, at a time when animations are now very common on television, at home and in the workplace, jurors expect more from courtroom presentations. When one side uses animation and the other does not, jurors may question why one side chose not to animate the case. The inference is almost always negative.
F. Methodology of Displaying Animations
While animations can be transferred to videotape for ordinary playing at different speeds, angles, etc., the best methodology for presenting an animation is to put the animation on digital format such as laser disk. A laser disk presentation allows the attorney and the expert to provide commentary while going through the animation frame by frame. In this way, the animation serves a dual purpose of an animation and a series of charts. Moreover, by using bar codes, the attorney or expert can immediately call up a particular sequence of the animation with the wave of a bar code pen. This can be done during opening statements (if permitted), presentation of evidence, cross-examination and is especially useful in final argument. Once the decision has been made to put the animation on laser disk, critical photographs, video and documents should also be put on laser disk, making the entire case easier to present and greatly enhancing the appearance of the attorney from an efficiency standpoint.
EVIDENTIARY ASPECTS OF ANIMATION
Many attorneys are needlessly anxious about the admissibility of animation. To relieve this anxiety, attorneys should recognize that an animation is nothing more than a moving chart. An animation should be thought of as a series of charts run together quickly to illustrate the testimony of a witness. When considered in this light, an animation is not a frightening evidentiary issue that should cause lawyers to lose sleep. In fact, animations need not be admitted into evidence to be useful. An animation can simply explain or illustrate witness testimony. It is much simpler for an expert to show his opinion of how the accident happened than to explain the various time components and concepts of motion in words alone.
There is no question that photographs are admissible. In deciding whether to admit a photograph, a trial judge must simply determine whether a proffered photograph of the scene clearly depicts the objects that are pertinent to the issues involved in the case. (See Anello v. Southern Pacific Co. (1959) 174 Cal.App.2d 317, 322.) Even with photographs, it has been held that it is not necessary that the exact physical conditions which existed at the time of the event in question be precisely duplicated. (Id.) Thus, the critical issue is not whether the depiction is an exact duplication of an event, but whether the depiction is illustrative rather than misleading. (Id.)
One issue frequently raised is whether or not animation should be excluded on the grounds it is prejudicial. Evidence Code Section 352 provides: The Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
If an animation accurately depicts or illustrates the testimony of a witness which itself is admissible, the mere fact that the animation may have a substantial impact on the jury does not make it prejudicial. (See People v. Brommel (1961) 56 Cal.2d 629. See also, People v. Hood (1997) 53 Cal.App.4th 965.)
Ultimately, the decision to admit an animation is at the discretion of a trial court. (See Church v. Headrick & Brown (1950) 101 Cal.App.2d 396, 415; and People v. Brown (1988) 46 Cal.3d 432.) Many attorneys would be surprised at how readily most courts accept animations. If an attorney is careful in designing the animation, the chances of exclusion are minimized. In particular, the attorney should take the following steps:
- Make sure that the witness or expert can testify that the animation accurately depicts his or her opinion.
- Avoid depicting facts which could inflame a jury or which have little relevance to the issues in dispute.
- Make sure there is factual evidence which supports the witness' testimony, or in the case of an expert witness, will support his or her opinion as to how the accident occurred.
COSTS OF ANIMATION
Animation is not as expensive as most lawyers think. When one considers the cost of most trials, typical animations will represent a very small percentage of the total litigation budget. The forensic animation industry has grown increasingly competitive, and improved technology has gone a long way to reduce costs. Animations, which once cost as much as $50,000, can now often be done for $10,000 or less. In fact, most forensic animations cost between $5,000 and $15,000, with the majority of animations falling somewhere in the middle. In deciding whether to create an animation for trial, an attorney should consider (1) the size of the case; (2) the importance of the animation to convey a particular concept; and (3) the steps that can be taken to reduce costs.
A. What Size Case Justifies Animation?
Since animation costs usually start at $5,000, animation clearly is not appropriate for an ordinary fender bender or soft tissue injury case. If ultimate damages are not expected to exceed $100,000, it is very unlikely the expense of an animation is justified. Preparing an animation will not only require fees for the animation, but also additional attorney and expert time. Nevertheless, in the appropriate case, this time is well spent and improves the preparedness of both the attorney and the expert as they are forced to think through the case in creating the animation.
B. Evaluation of the Importance of Animation
In some cases, an animation will only convey facts relating to side issues, while other animations depict the issues at the very heart of a dispute. Where an animation focuses upon the most critical issues in dispute, the animation will obviously be more important, and the attorney should be willing to invest more money in completing the animation. Cases involving the spread of pollution, the internal workings of a part, or difficult concepts involving speed, distance and motion often require animation for the concepts to be understood. For example, if defense counsel wishes to show it was impossible for the driver to see the plaintiff or it was too late to apply the brakes, an animation from the driver's viewpoint may be the most important illustrative exhibit of the case. A verdict could easily hinge on how the jury interprets the animation.
Accordingly, before deciding to prepare an animation, an attorney must evaluate how the animation will be used and how crucial such an animation will be in proving a point at trial.
C. Ways to Reduce the Costs of Animation
Some animators quote animation fees based upon a price per second of animation. Such quotations are deceiving. The costs of animation depend mostly upon degree of detail depicted in the animation and the kind of action portrayed. While animation costs generally increase as the animation gets longer, the most important factor in pricing an animation is how much detail is necessary. It costs much less to depict a car traveling at a constant rate of speed down an empty road for 20 seconds than it would to depict the same car traveling at different speeds, weaving in and out of traffic, and then flipping over twelve times in those same 20 seconds. Accordingly, the best way to keep costs down is to focus upon the details and time frames most essential to the case. Surprisingly, animations generally need not be longer than six or seven seconds. The animation time can be extended by using multiple camera views to show the same event from different angles. Likewise, use of slow motion can also give the trial lawyer "more animation for the buck."
Hiring animators on an hourly basis is a bad idea. It is impossible for the trial lawyer to monitor the time it takes to complete the animation, and costs can easily escalate, leading to frustration on the part of the animator and the trial lawyer. Therefore, it is essential that the animator and trial lawyer spend time at the bidding stage of the animation to determine exactly what will be done, how much it will cost, and when the project will be completed. Since "add-ons" can often cost a substantial amount of money, the trial lawyer should carefully consider exactly what he wants to depict before the animator begins work. Thus, the trial lawyer should bring his expert in at the very outset of discussions with the animator. It is frustrating and expensive when a trial lawyer finds out after an animation has been completed that he has misunderstood his expert's testimony and the animation does not illustrate the expert's opinion. In this event, the animation must be redone or abandoned.
The lawyer should resist the temptation of allowing the animator and the expert to work without the attorney's supervision. Experts and animators can become over-concerned with details that not only increase the cost of the project, but detract from its usefulness. Lawyers who do not stay involved in the animation process are less likely to be satisfied with the final product.
Animation can make a major difference in how a trial lawyer presents a case. Although not every case requires animation, many cases are enhanced by such audiovisual evidence. Every trial lawyer should become familiar with animation so this important tool may be used effectively and at a reasonable cost for the right case.