Aviation Trial Graphics, ValuJet, Lawyers Weekly
Lawyer Helps Litigators Match Computer Graphics to Trial Strategy
November 1, 1999
By Christa Zevitas
Ken Lopez had a host of legal jobs to choose from when he graduated from law school four years ago, including a position with the U.S. Senate. For Lopez, the choice was simple.
He turned them all down.
But Lopez wasn't aiming to leave the law; instead, his decision was based on a desire to become involved in high-profile cases at a young age.
Lopez discovered the fast track to high-stakes litigation by founding a tech company that creates computer-generated demonstrative evidence. And in just four years, he says he has already played a key role in 30 million-dollar verdicts and settlements including a case stemming from the 1996 ValuJet crash in the Florida Everglades; a recent $2.2 million verdict against American Airlines; a $1.1 billion judgment in a bench trial of an international banking fraud case; and a $100 million verdict in a Florida class-action suit. He has also worked for the tobacco industry in recent litigation.
"Right away, I was interested in working on cases that made front-page news, and that wouldn't have been possible following the traditional partner-path at a law firm - it would have taken 20 years," says Lopez. "When you're graduating with 20,000 other lawyers across the country, you hate to be number 12,462, so why not find a way that you're distinguishable?"
Lopez's company specializes in creating demonstrative evidence - from traditional poster board exhibits to 3-D animated videos - which make a lawyer's presentation more compelling. As president of Animators at Law, Inc., in Alexandria, Va., Lopez spends his days advising lawyers about which demonstrative aids would best enhance their arguments and teaching them how to most effectively use the those aids in the courtroom.
According to Lopez, the process is as important as technical skills when developing demonstrative evidence. He says lawyers who want to employ technology in the courtroom must identify the potential hurdles their case presents, devise a trial strategy designed to overcome those obstacles and then decide whether technology can help bolster their arguments. If they decide that technology can help, Lopez advises lawyers to consider how much money their case is worth and weigh that against the cost and effectiveness of different levels of technology.
3-D in the Courtroom
According to Lopez, 3-D animation can only be justified if a case is worth at least $500,000 and includes a formidable obstacle which can only be overcome with a high-tech presentation. That's because 3-D animation is complex and very expensive, he says.
Take, for example, the 3-D video Animators at Law created for solos Tom Stubbs and John Hyatt in their ValuJet lawsuit. Although the 11-minute video cost the Decatur, Ga., attorneys $65,000, the two lawyers were convinced their suit was worth millions if they could overcome a formidable obstacle.
The ValuJet aviation disaster was caused by complications arising from a fire that broke out in the plane's cabin approximately 10 minutes after take-off. Three-and-a-half minutes after the fire started, the plane plummeted, nose down, into the Everglades. All 109 people aboard died.
Stubbs and Hyatt represented a man who lost five family members in the crash. He brought five wrongful death suits against ValuJet, and the first four were slam-dunk cases that settled out of court. The fifth, however, involved a victim who was less sympathetic than the others, and the defense was taking it to trial.
The victim in this case, the plaintiff's sister, was a divorced, single mother who made only $16,000 a year as a waitress.
Stubbs says that in order to maximize damages they needed to shift the focus away from her income and onto her pain and suffering prior to death. Conveying the horror during the three minutes and 30 seconds it took the plane to fall from the sky was the key to obtaining significant damages, both attorneys say.
They also agree that a copy of the cockpit voice recording (CVR) was the most critical piece of evidence because it allowed jurors to imagine what the passengers endured after the fire broke out. Hyatt says it captured the screams of passengers as well as the quivering voice of a flight attendant reporting conditions in the cabin to the flight crew. So they wanted to play it to the jury in the most dramatic way possible.
"That's why we decided to use an animation of the flight path of the plane, with the CVR serving as the soundtrack," says Hyatt.
The animation showed the outside of a McDonnell Douglas plane, synchronizing the plane's movement to the actual flight data. At the bottom of the video, a dynamic graph charted the altitude of the plane so that jurors could get a better sense of its dramatic drops and turns. Opposite the altitude graph was another graph that clocked airspeed.
"The fire broke out at about 10,000 feet and shortly after the plane dropped to about 7,000 feet, leveled off for a while and then made a screaming dive at three times the normal rate of descent. Then it leveled off at about 1,000 feet before nosing over straight into the swamp," says Stubbs.
He credits Lopez's staff with accurately matching the animation with the flight data and creating an extremely powerful piece of evidence. He adds that while verbal testimony alone would have allowed the jurors to understand the passengers' horror on an intellectual level, the video would have made them feel it on an emotional one.
They went to great lengths to ensure the video's admissibility because they knew it was powerful and the defense would do everything it could to prevent the jury from seeing it. That meant making sure that absolutely everything shown in the video was a verifiable fact - what the video didn't show was just as important as what it did, says Lopez.
For example, they chose not to show the inside of the plane, so the passengers and the fire itself weren't part of the animation.
"It was a strategic decision because there was too much speculation as to what was going on inside, and we wanted it to be grounded in admissible evidence," says Lopez.
Lopez also used the defendant's own data when creating the video in order to protect it from a likely objection. Stubbs says that this "gave us an effective weapon, so when they did strenuously object, the court overruled it."
Hyatt adds that the animation also strategically ended just before the plane crashed.
"The more visual melodrama the animation contained, the greater the risk of the court banning it and of it offending the jury with unnecessary graphic details," he says.
The case settled on the first day of trial and the jury never saw the animation, but Stubbs says it was "an extremely important piece of evidence" that was "well, well worth it."
Although the exact number is confidential, the case settled for a seven-figure amount.
Lopez says this case is a prime example of how his unconventional career path has paid off. At age 30, he had two weeks to produce a critical portion of a case that stemmed from one of the most publicized disasters of the decade.
"The few of us who heard the cockpit cabin audio all feel like we were part of the tragedy in some small way," he says. "To then turn that tragedy into something that helps our client find justice through the use of our animation was exhilarating for our organization. None of us will ever forget that project. Exciting really is not an appropriate word - it changed us on a deeply emotional level."
2-D In the Courtroom
Lopez counters Stubbs' advice by stressing that even when the potential value of the case is in the millions, lawyers don't always need to buy the most expensive animation. In fact, he says, the most effective courtroom technology is often the least complex.
Daniel Rose, a plaintiffs' attorney who specializes in mass disaster suits, agrees. He credits a relatively inexpensive 2-D animation with bolstering the plaintiffs' most important argument in a trial that resulted in a $2.2 million verdict against American Airlines.
Rose's case stemmed from a 1995 flight from Los Angeles to New York during which severe turbulence from thunderstorms caused the plane to rise and then fall 200 feet within less than a second, throwing passengers out of their seats. Several of the 13 plaintiffs hit the ceiling, while others were either thrown onto the backs of the seats in front of them or into the aisles. Only one of the plaintiffs suffered lasting physical injuries.
The plaintiffs alleged that fear of death during the 28 seconds of turbulence caused severe emotional distress. Plaintiffs' attorneys argued that American Airlines was responsible for this distress because the pilot should have avoided the thunderstorms and should also have illuminated the "fasten seatbelts" signs.
The company admitted liability, but contested the severity of damages.
"They pooh-poohed the effect it had on the passengers," says Rose, noting that he and his co-counsel were well aware that it would be a challenge to convince jurors that the turbulence on this flight was "a different animal than what we all have experienced in flight."
Although Rose concedes that an expert could have verbally explained how severe the turbulence was, he says they needed something to illustrate their argument in a more compelling fashion.
"Instead of having an expert read the black box parameters [of altitude over time] and hoping the jury would listen and understand how violent the altitude [changes] were, we wanted to use an animation," he says.
That's when Lopez entered the picture.
"We created a 2-D animation of an airplane drawn to scale that moved from left to right, leaving behind its path in the form of a graph which showed altitude with relation to time," says Lopez. "In the left-hand corner, we superimposed the Statue of Liberty and its corresponding measurements so that jurors could compare them with the altitude changes the plane made and understand that it was essentially like jumping off the statue."
This image, suggested by Rose, was particularly compelling since the trial took place in New York City.
While the plaintiffs' expert was explaining how those intense thunderstorms caused the plane to violently drop and rise, the attorneys played the video. Rose says that "although it was simple, the animation served as a very powerful, effective demonstrative aid that bolstered our expert's argument."
The 40-second animation, which according to Lopez was "as low-tech as it gets," cost his client less than $10,000. Lopez suggests that lawyers who are considering technology should keep Rose's case in mind and strive to enhance their arguments with the most effective - not necessarily the most high-tech - method available.
Simple Graphics, Big Verdict
Plaintiffs' lawyers Keith Cross and Joe Bennett of Colorado Springs took Lopez's advice in an extremely complicated med-mal case. They opted for an interactive computer presentation along with computer-generated trial graphics on high-quality posterboard.
But just because they went with the lowest of the low tech, that doesn't mean it came cheap. In fact, the Colorado lawyers spent close to $30,000. That price reflects the cost of 30 exhibits - both traditional and interactive - as well as the time the designers spent creating them, says Lopez.
Although both lawyers say the trial graphics proved instrumental in winning a $7.1 million verdict, they believe that similar presentations are appropriate only for big-dollar cases. Bennett says they knew their case was worth millions because the plaintiff's past medical expenses alone totaled $1 million. Plus, their economist predicted the case could bring in another $10 million to $25 million, depending on how long the plaintiff lived.
The case involved a 17-year-old girl whose physician failed to diagnose a condition that is common among patients who receive bone marrow transplants. As a result of the misdiagnosis, the plaintiff suffered severe damage to her lungs, liver and immune system which, in turn, shortened her life expectancy. She ultimately died from leukemia - the initial reason for her transplant - several weeks after the verdict.
Amy Byran's parents sued all three of her doctors. Two settled out of court, but one was taking his case to trial.
Because the case involved a slew of complicated medical-science issues that a total of eight bone marrow transplant experts were going to explain, Bennett and Cross planned to break up these lengthy testimonies with exhibits that were both educational and attention-grabbing.
"We needed exhibits that would keep the jurors' interest as well as help them understand the medicine," says Bennett. "We wanted them to be helpful and look natural, and we didn't want them to look slick because it would have appeared like we were trying to impress the jurors with fancy trial graphics."
To achieve that goal, Lopez suggested combining an interactive computer presentation (similar to PowerPoint) with computer-generated graphics done on poster board. According to Bennett, Lopez's advice worked well since "nobody fell asleep" during hours of ponderous scientific testimony, and jurors later told him that the trial graphics helped them understand the medical and scientific issues.
One of the most effective trial graphics was an electronic timeline that was hooked up to a 10-foot by 10-foot screen.
"We had photos and documents embedded in our timeline so we could let the jury see what exactly happened on a particular day. For example, we could click on a particular date and a photo of Amy would come up so the jury could see what she looked like on that day. Then we could click on another day, and a relevant medical record would appear," says Bennett. "It all went over seamlessly. We'd never done anything like that before, and it was awesome."
The jury awarded the plaintiff $14.2 million in damages, but the verdict was halved because they also found the two nonparty physicians 50-percent liable.
"The verdict was in large part due to Ken's graphics," says Bennett. "You don't get $7 million if they don't like what you're showing them. And other than the defense attorney, every person we talked to was very impressed with the presentation."
Bennett plans on calling Lopez again for help on other high-stakes cases. He notes that although he practices in Colorado and Lopez is based in Virginia, working together was easy. That's because Lopez posted the trial graphics on the Internet for Bennett and Cross's review. "If we didn't like, for example, the first draft of a particular group of charts, we e-mailed them back to Ken with suggested changes," he says. "We also talked on the phone with him while looking over material on the Internet. It was really cool."
Bennett also says that Lopez's law school education allowed him to provide a different level of service than the scores of companies nationwide that offer similar services.
"[Lopez] had a good understanding of the rules of evidence, so he knew, for instance, what kinds of things would get an exhibit declared inadmissible," says Bennett. "We didn't have to explain the legal issues to him like we would have to a non-attorney."