An Animated Approach: Legal Animation's Admissibility in 6 Easy To Follow Steps
July 21, 1997
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 legal 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 legal 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 legal 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, legal 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 legal animation is admitted is to engage a good expert whose testimony the legal 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 legal 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 legal 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 legal animations are straight forward and compliance is easily measured. With this checklist completed successfully, your legal 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.