Using Trial Research to Create Animation and the Dos and Don'ts

by Michael Boucher

In my last post I wrote about trial research and how to maximize the investment.  Let’s continue along the litigation timeline and build a strategy from the study for our demonstrative exhibits.  I mentioned a study where we learned that our case needed to be more demonstrative and educate the jurors on an assembly line process.  One key component of a study is the debriefing.  This aspect of the study is a free flowing discussion with the jurors.

The debriefing allows the study to dig deeper into the jurors thought process and provide additional information on the case.  We then have the opportunity to understand what types of information, evidence or demonstratives may be useful or may impede the case.  In the previous post I outlined a case where based on the jurors response we created some demonstratives to aid in their understanding, and in particular an animation and retested the case with a new jury pool.  What wasn’t covered was how the details were identified in our first study, it was from the debriefing.  These details came in the debriefing which we conducted after all three pools rendered their verdicts.  We reassembled all the jurors together and began the discussion with some probative questions.  As the conversation with the group progressed we learned that if we presented the assembly process as a story board which allowed us to explain the process in various components or stages the jurors could better understand and retain the process.  The final demonstrative that tied it all together was a three dimensional animation. 

We used this animation as a demonstrative and not as evidence.  The animation took the components from the story board and integrated them into a moving process.  Many attorneys are afraid to use animation.  Their fear is generally that they will spend a lot of money and not be able to use it at trial.  While there is legitimacy to this, more often than not animations are used at trial.  It generally boils down to how the animation will be used, demonstrative or evidentiary, and more importantly, the judge’s position on animation use.  I have been in this industry for almost 20 years and the one thing I have learned is that the courtroom is the judge’s kingdom and he or she has the final word. 

If you find the judge is open to the use of animation now the decision has to be made if the animation is important enough that it must be introduced as evidence.  I would say that evidentiary animation is rarely necessary.  The area we see most often requiring evidentiary animation are in accident reconstruction, intellectual property and criminal cases.  The key to using animation at trial is that it be accurate and representative of reality.  The issues that cause animations to be excluded are that they are not to scale; the perspective and angle may be prejudicial or may be incomplete.  The measure by which animation use is weighed is probative vs. prejudicial.  Most courts will allow animation if there is probative value for the jurors without prejudicing the opposition’s case.  The purpose of any demonstrative aid, static or animated is to assist the jury’s understanding.  We do a fair amount of animation in medical malpractice cases and they are very valuable and rarely introduced as evidence.  In all reality, the publishing of an animation is more often enough.  The need for jurors to review during deliberations is scarce primarily because either the animation was effective or it wasn’t. 

One issue that can arise with an animation is the detail that is put into it.  We did an animation for a plaintiff of him walking in a strip mall where he fell and was significantly injured.  We placed a lot of detail in the animation, but the details were of the strip mall.  We based the details on photographic evidence.  When it came to the details of the man we used minimal details.  No defined facial features, a general body type that was similar to the plaintiff and not much more.  We used details that could be supported by the photographic evidence such as striping of the parking lot, location of parking blocks and the alike; we did leave out the details of the man which could be deemed prejudicial. 

While often times using generic representations of individuals is a prudent choice, even generics can be prejudicial.  In one case we were working on the defense and the plaintiff wanted to publish an animation to the jury.  We viewed the animation outside of the jury and for the most part it was a good animation.  There was one thing that we felt was prejudicial to us.  The animation represented a man, the plaintiff, who was hurt on the job.  The plaintiff was a middle age man with a middle age waist band, not fat but certainly overweight by anyone’s judgment.  The issue arose from the figure they used to represent the plaintiff.  While it was a generic figure that can be easily purchased on line, the figure they selected was of a very fit and muscular man.  While often times this does not rise to the level of prejudice, but in this case we felt that it would make the impression with the jurors that the plaintiff was in this physical condition at the time of the injury.  We were successful in getting that animation excluded.

Details are obviously important in many instances but again they should be incorporated only when they can be supported with evidence.  We have done several accident reconstructions, some which were evidentiary.  When animations are going to be used often times the animator is deposed, in particular when the lawyers want to use the animation as evidence.  The best way to create this animation is by closely working with the expert witness and utilizing their data and files.  The experts we work with will generally visualize their data sets with CAD.  Our systems allow us to import the CAD files which will bring all of the data and measurements that the expert used.  From there our animators add skin and movement.  When we utilize this approach the opposing attorney learns very quickly that he or she is deposing the wrong individual.  The proper person to depose is the expert witness.  If the expert’s data is accurate and acceptable then the animation will be the same.

There is one final area of animation that is emerging and its use should be considered very carefully, biomechanics.  This science is the study of free body movement such as how a body reacts in a car accident.  This area of science is not widely accepted by the courts and often times the animations are excluded.

Use trial research to identify weakness in your case presentation and be sure to explore the details through debriefing.  This will provide valuable insight into how to present clear, understandable and persuasively arguments at trial.  Then vet the strategy against the judge’s preference and consider which details are important and which ones are not.  Be sure to produce the animation with plenty of time to make revisions if there are valid objections to the animation.  Most of all don’t be afraid to use animation.  Not all cases need animation but the ones that do present the opportunity to provide a little pizzazz to the trial.  Remember the top three juror complaints, boredom, lack of understanding and disorganization.  Animation will remove at least two of the three.