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Since the vast majority of civil cases settle prior to trial, and most often as a result of mediation, we believe it is necessary to devote virtually the same time and effort to mediation preparation as we do for trial preparation. A recent products liability case demonstrates how this can pay off as we were able to obtain a $4.5 million settlement despite difficult liability and the fact that our experts lost a key piece of evidence.
Since the case is subject to a confidentiality agreement, the following facts are necessarily limited. We represented a man who was badly burned while using a piece of camping equipment. Our client was using the equipment inside his home contrary to the express warnings of the manufacturer. In the course of investigating the cause of the incident, our experts lost part of the product. Despite that, our experts determined that a manufacturing defect caused the equipment to malfunction.
The defense experts examined the remaining evidence and concluded that no defect existed. The defense asserted that our client misused the equipment or, in light of certain inconsistencies in the physical evidence, perhaps he was not even using the product that we claimed was defective. The defense also claimed spoliation of evidence.
After our liability experts were deposed, we agreed to a private mediation in an effort to resolve the case. Both sides agreed that John Garvey would serve as the mediator.
Upon scheduling the mediation, we immediately did two things. First, we asked our experts to prepare a computer animation illustrating the manufacturing defect and how it caused the incident that led to our client’s injuries. Second, we set up a two day session in which we would videotape interviews with friends of our client, family members, and disinterested witnesses who had not been deposed. These were done specifically for the purposes of presenting our case in the best possible light at the mediation session.
Computer animations are expensive, but in our view they are priceless in illustrating a complex theory in cases involving medical malpractice and defective products. When used at mediation, they show the opposing side – most importantly the insurance representative – that we are prepared to try the case if need be and that we will be able to communicate the complicated subject matter to the jury in a compelling way.
Although we may prepare the animation for mediation we are well aware that we may need to use it at trial. As a result, we are mindful of the rules governing the admission of such evidence.
There does not appear to be any reported New Hampshire case discussing the admissibility of computer animations. However, our Supreme Court has addressed the admissibility of filmed reenactments in the criminal context:
Most jurisdictions that have admitted filmed reenactments as evidence in a criminal case have required the proponent of this evidence to lay a proper foundation showing that the video tape or film accurately portrays the event in question. Additionally, the proponent must establish that the reenactment was filmed under conditions substantially similar to those existing at the time of the event. We suggest that a similar approach be used to determine the admissibility of filmed reenactments under the New Hampshire Rules of Evidence.i
The Court’s treatment of filmed reenactments is similar to the approach applied to computer animations in other jurisdictions. One treatise summarizes the law as follows:
Like other demonstrative evidence, the courts have recognized the admissibility of computer-generated animation depends on the proponent’s ability to sufficiently establish foundational requirements such as authentication, relevance, fairness and accuracy in representing evidence, and probative value exceeding possible prejudice.ii
In one of the leading cases on the admissibility of computer animation, the South Carolina Supreme Court explained that "a party may authenticate a video animation by offering testimony from a witness familiar with the preparation of the animation and the data on which it is based. In this case, the animation was authenticated by the testimony of the expert who prepared the underlying data and the computer technician who used that data to create it."iii
With this in mind, we were fortunate enough that our experts actually had staff that prepared the animation for them in-house. This ensured that our testifying experts were intimately involved in the preparation of the animation and that we had ready access to the staff members who actually created the computer animation. As a result, we were confident that we could produce sufficient testimony to authenticate the animation if it later became necessary to show it at trial.
The South Carolina court stated that "an animation is relevant when it has a direct bearing upon and tends to establish or make more or less probable the matter in controversy. An animation may be relevant when it relates to other admissible, material evidence and it will aid the trier of fact in understanding the related evidence."iv
This appears to be a minimal hurdle in most cases. After all, why would anyone go to the expense of creating a computer animation that was irrelevant to the matter at hand? In our case, a computerized illustration of the defect and how it caused our client’s injuries was obviously relevant.
Fair and Accurate Representation
The rubber meets the road on this requirement, which the South Carolina court described as follows: "[T]he animation must be a fair and accurate representationv of the evidence to which it relates. It need not be exact in every detail, but the important elements must be identical or very similar to the scene as described in other testimony and evidence presented by the animation's proponent in order to constitute a fair and accurate representation." To illustrate this point, the court said that an animation reconstructing a motor vehicle accident, for example, must be technically correct on details such as distance, terrain, relative speed, path of travel, and surroundings.vi The court emphasized, however, that "[t]he fact the animation is inconsistent with testimony or evidence presented by the opposing party should not necessarily lead to its exclusion, provided it fairly and accurately portrays the proponent's version of events."vii
We address this requirement by insisting that our testifying experts participate in the preparation of the animation. That way we are assured that the animation illustrates the expert’s testimony and is not viewed by the court as an effort to create independent evidence.
Probative Value v. Danger of Unfair Prejudice
This requirement is the familiar Rule 403 balancing test applicable to virtually all evidence. The South Carolina court noted that initial concerns about the prejudicial effect of computer-generated animations "are diminishing as judges and the public become more familiar with computer technology."viii
We believe that, as long as an animation is supported by expert testimony and is not extraordinarily dramatic, it should satisfy this test.
Our experts worked with their in-house animator for several weeks preparing the animation that we ultimately used in this case. We had little input into the process because we were confident that our experts knew what they were doing. In the end we were very happy with the results. The total cost, including expert time, was approximately $15,000.00 for a six minute animation. In a case of this magnitude, that turned out to be a small fraction of the total litigation expenses and it was well-worth the cost.
The traditional “day-in-the-life” video is something that is produced for use at trial. It has obvious value illustrating for the jury the struggles faced by the plaintiff that are not necessarily evident when they observe the plaintiff in the courtroom.
There are no New Hampshire cases addressing the admissibility of traditional day-in-the-life videos. However, the Illinois Supreme Court has explained that
Because a "Day in the Life" film is a form of motion picture it is admissible evidence on the same basis as photographs. Consequently, before a "Day in the Life" film can become evidence at trial it must first pass a two-prong test. First, a foundation must be laid, by someone having personal knowledge of the filmed object, that the film is an accurate portrayal of what it purports to show. Second, the film is only admissible if its probative value is not substantially out-weighed by the danger of unfair prejudice.ix
The California Court of Appeal has recognized that "it is sufficient to authenticate a 'Day In The Life' video if the proponent makes a showing the videotape is an accurate portrayal of what it purports to be."x The same court rejected the contention that the probative value of the day-in-the-life video before it was substantially outweighed by its prejudicial effect. In so ruling the court noted that the video was relevant on the issue of damages, "highly probative of the extent of [the plaintiff's] injuries," and that it "graphically demonstrated her need for constant medical attention in a manner oral testimony could not convey."xi On the other hand, "because there was an opportunity to cross-examine both [the plaintiff and her nurse] at trial, the risk of any prejudice was greatly reduced."xii
As for the discovery rules applicable to day-in-the-life videos, the Illinois Supreme Court has flatly held that "opposing counsel has no right to intrude into the production of this demonstrative evidence."xiii As a result, defense counsel is not entitled to attend the taping nor are they entitled to view the unedited footage.xiv
In order to present our client’s non-economic damages in the most impactful way at mediation, we use videotape presentations that go beyond the traditional “day-in-the-life” video footage. We believe that, in order for the opposing side to accurately gauge the harm caused by its client/insured, they need to be shown how the plaintiff lived before the incident as well as how he or she lives now. They also need to hear how the injuries have effected not only the client but his or her friends and family. In short, to the extent possible they need to see and hear at the mediation what the jury will see and hear if the case goes to trial.
In this case, we gathered photographs of our client taken before the incident which illustrated the active lifestyle that he enjoyed prior to being injured. We also had a professional videographer spend a full day with our client documenting virtually every waking moment. We also spent two full days conducting videotaped interviews with our client’s father, stepmother, sisters, several longtime friends, a neighbor who witnessed the immediate aftermath of the incident, and the lead emergency medical technician who treated our client at ths scene.
Blending all these elements, we created a final twenty-minute product that intertwined still photographs taken before the incident, “day-in-the-life” footage taken after the incident, and videotaped descriptions of the incident itself and of our client’s life before and after the incident from those who knew him best and who would be providing such testimony at trial. Perhaps the most compelling aspect of the presentation in this case was the footage of our interview with the emergency medical technician who described our client’s injuries and his pain and suffering in a way that no one else could.
In a significant case like this one, we knew that the insurance representative would be fully aware of the evidence that had been produced in discovery including all of the deposition testimony and our client’s medical records. The defense understood the substance of our experts’ liability testimony and they had a general understanding of the type of person our client is. However, by showing the computer animation and the videotape presentation described above, we were able to give the insurance representative a preview of what the jury would see and hear if the case went to trial.
We believe that the animation successfully illustrated the complex testimony of our liability experts in a way that the jury could readily understand. We hoped that this would make an impact on the defense if they were expecting to benefit from the complicated nature of the product defect testimony.
We also believe that the videotape presentation not only gave the defense a taste of the substantive information that our witnesses would provide to the jury regarding our client’s damages, but it also gave them a feel for the quality of the witnesses we had on this issue. In this way, the videotape presentation accomplished something that could not be accomplished in any other way at this critical stage of the process.
We will never know for sure what impact our mediation presentation actually had on the insurance representative but we were able to settle the case for more than we had expected coming in to the mediation. Given the problems we had, it stands to reason that the animation and the videotape presentation must have had an effect on the defense.