| The power of animation to depict and persuade | | | | concerns about the prejudicial effect of animations |
| makes it a natural fit for numerous applications, from | | | | "are diminishing as judges and the public become more |
| advertising to training to product documentation. One | | | | familiar with computer technology." How does this |
| industry that has seen a multimedia boom in recent | | | | familiarity, as well as the opportunity for |
| years is litigation. Animated reconstructions have | | | | cross-examination of witnesses at trial, impact the risk |
| become so commonplace in many types of cases as | | | | of prejudice for animation? |
| to be expected. | | | | DM: In "Chicago", Richard Gere is ready to speak to |
| I recently had a chance to talk to David Marbach, a | | | | the jury when the announcer says, "Ladies and |
| litigation support professional who has used animation | | | | Gentlemen! A tap-dance!" The courtroom is not show |
| frequently in his work. | | | | business, but only in the same way that an election isn't |
| Solid Blue Development: Tell me a little bit about your | | | | a popularity contest. There are a set of rules that |
| experience in the legal profession and your current | | | | everyone must follow. This does not mean that you |
| position. | | | | cannot make a fantastically effective presentation |
| David Marbach: I have been in the Litigation Support | | | | while operating within these rules. |
| field for 10 years now with various law firms and | | | | The prejudicial effect of animations is certainly being |
| corporate entities. I currently manage the Legal | | | | negated as juries begin expecting multi-media |
| Technology department at a large law firm where we | | | | presentations to clearly state an argument. |
| work very closely with our attorneys on Electronic | | | | SBD: It seems that communication between the |
| Discovery matters and large-scale document reviews | | | | animator and the legal team presenting the case is |
| and productions. | | | | critical to producing an accurate, admissible animation. |
| SBD: How have you used animation in legal cases? | | | | How do you ensure that the animation faithfully |
| For which kinds of cases is animation most useful? | | | | represents spoken testimony? |
| DM: I have used animation in approximately a | | | | DM: More importantly, an animation must represent the |
| half-dozen cases. Most of the cases were product | | | | irrefutable facts of the case. An excellent way of |
| liability cases; one was medical malpractice and one | | | | ensuring this is by looking to facts and evidence |
| was a negligence tort involving a slip-and-fall in a | | | | presented by the opposition. Attorneys are obviously |
| department store. Animations are most useful when | | | | less inclined to object to facts they themselves have |
| they accurately summarize and simplify a complex | | | | admitted. |
| mechanism or physical situation. | | | | SBD: How might a plaintiff's use of animation differ |
| SBD: During mediation, an animation demonstrating the | | | | from a defendant's? |
| expert testimony a jury would hear at trial can have a | | | | DM: A common mistake is to think that plaintiffs' |
| profound impact on the opposing party. How can this | | | | presentations are more fantastic or flashy than those |
| convince them to settle during mediation? If they hope | | | | of defendants. All litigants are subject to the same |
| to capitalize on any confusion resulting from complex | | | | laws and balancing test between the probative value |
| testimony at trial, how can an animation that clearly | | | | and the potential prejudicial effect of any piece of |
| represents this testimony convince the opposing party | | | | evidence. |
| to settle? | | | | SBD: In practical terms, what are some of the |
| DM: Because of the cost and attention necessary for | | | | limitations of animation for trial use? What can |
| producing animations, they are rarely used during | | | | animation not accomplish? |
| pre-trial alternative dispute resolution. The earlier in a | | | | DM: Animations absolutely cannot show or imply any |
| case that they are unveiled, the higher the chances | | | | fact not absolutely substantiated by undisputed |
| that the opposition will find a way to exclude them | | | | evidence. It's greatest purpose is to reinforce, not |
| from trial. Animations are normally kept as | | | | reinvent or in any way alter the facts. |
| "ace-in-the-hole" exhibits, however it's possible that | | | | SBD: While animation can never completely replace |
| they could be brought out during mediations to show | | | | descriptive narrative, when an entire courtroom views |
| how easy it would be to present one side of the | | | | an animation - judge, witnesses, jury, everyone - and |
| dispute in a clear and convincing manner to the jury. | | | | the events depicted are determined to be substantially |
| SBD: Admissibility as evidence is key to using | | | | true, how important is it in establishing the facts of a |
| animations effectively. How can a side ensure the | | | | case? How much persuasive power does an |
| animation will be admissible if the case goes to trial? | | | | accurate animation hold? |
| DM: It is virtually impossible to ensure admissibility of an | | | | DM: Animation can be unbelievably effective in |
| animation unless every single facet of the clip can be | | | | summarizing a particular version of the facts in a case. |
| substantiated by irrefutable facts. Thus, it is very | | | | It's power lies not only as a tool for effective |
| important to keep animations very, very simple and not | | | | communication, but in making a series of events |
| take any artistic license. Any deviation from or | | | | tangible to a jury. Chances are, when deliberations |
| exaggeration of a physical situation is likely to be | | | | begin on a case, the jury will immediately begin talking |
| objected to -- potentially making the entire animation | | | | about closing arguments and effective animations and |
| inadmissible. | | | | multi-media presentations. These are the parts of a |
| SBD: A South Carolina court recently stated that | | | | trial that stick in their mind and help to decide cases. |