Vol. 11, No. 1, Pg. 32. Using Computer Animations.

• Author: By Mark C. Joye

South Carolina Lawyer

1999.

Vol. 11, No. 1, Pg. 32.

Using Computer Animations

32Using Computer AnimationsBy Mark C. JoyeIn the childhood game "paper, scissors, rock," the paper beats the rock, and the scissors beat the paper. In the high-stakes game of persuasion in a products liability trial, pictures beat words, and moving pictures beat static pictures.

Many people are mesmerized by television, so it follows that jurors watching a computer-generated animation of a motor vehicle collision can often be persuaded about how the crash occurred because they "saw it on television." As a result, the use in court of computer-generated animations-particularly in products liability cases-continues to increase.

Trial lawyers must respect the power of persuasion that these animations carry. They must know how to embrace them in their cases, as well as how to attack the visuals in opposing counsel's case.

This article explains the need to use computer-generated animations in motor vehicle products liability cases. The article also discusses the process involved in making the animations, suggests who to retain to produce the videos and, most important, offers effective techniques for using and attacking animations at trial.

My firm recently used these techniques success fully in Jimenez v. Chrysler Corp., No. 2:96-1269-11(D.S.C. Oct. 8, 1997). In that case, the plaintiff and defendant used computer-generated animations extensively. The products liability trial lasted five weeks and involved an intersectional collision of a Chrysler minivan in which our client's six-year-old boy was killed when he was ejected from the rear door, which opened on impact.

LEGAL STANDARDS

It was well established that videotape evidence purporting to re-create events at issue in a lawsuit must reflect conditions that are "substantially similar" to the actual events giving rise to the suit to be admissible at trial. Hinkle v. City of Clarksburg, 81 F.3d 416, 424-25 (4th Cir. 1996); Gladhill v. General Motors Corp., 743 F.2d 1049, 1051 (4th Cir. 1984); see also Chase v. General Motors Corp., 856 F.2d 17, 19-20 (4th Cir. 1988).

Although a computer-generated animation of a motor vehicle collision is not precisely the same as a videotape of a collision re-creation, they are generally considered analogous. Hinkle, 81 F.3d 416, 425. To be admissable at trial, a computer-generated animation will be scrutinized under the "substantial similarity" test that is associated with a videotape of a re-creation.

Trial judges have broad discretion in determining the admissability of a computer-generated animation. Id.; see also Chase. 856 F.2d 17, 19-20; Gladhill, 743 F.2d 1049, 1051-52.

Due to the "dramatic power" of these animations, the Fourth Circuit Court of Appeals has "encourage[d] trial judges to first examine proposed videotape simulation evidence outside the presence of the jury to assess its foundation, relevance, and potential for undue prejudice." Hinkle, 81 F.3d 416,425. By examining computer-generated animations this way, trial judges will also be satisfying their roles-as established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)-as "gatekeepers," ensuring that an expert's testimony is reliable and relevant.

USABILITY

Plaintiff counsel should consider using computer-generated animations in virtually any high-profile or high-stakes civil or criminal case. In an automobile products case, the defense will likely use an animation, particularly since it often has unlimited resources to defend its product.

In these cases, the defense typically will focus on the collision, not the defect. Obviously, if the defense can persuade the jury that the plaintiff's injuries had nothing to do with the defect, it wins. The defense does not want to argue that its product is free of defects. Therefore, the defense usually will be the first to consider using computer-generated animation of the collision because that is where it wants the focus of the case to be.

Plaintiff counsel must be prepared to meet this challenge head-on before beginning to discuss the defective product. If not, defense counsel will almost certainly point out in opening statement and closing argument that the plaintiff's lawyer spent only a few minutes talking about the collision and the rest of the time discussing the defect.

For example, the defense might say, "And the reason why Mr. Joye did that, ladies and gentlemen, is because he does not want you to look closely at...