Animation in Litigation - An Interview With David Marbach

The power of animation to depict and persuade makes it a natural fit for numerous applications, from advertising to training to product documentation. One industry that has seen a multimedia boom in recent years is litigation. Animated reconstructions have become so commonplace in many types of cases as to be expected.

I recently had a chance to talk to David Marbach, a litigation support professional who has used animation frequently in his work.

Solid Blue Development: Tell me a little bit about your experience in the legal profession and your current position.

David Marbach: I have been in the Litigation Support field for 10 years now with various law firms and corporate entities. I currently manage the Legal Technology department at a large law firm where we work very closely with our attorneys on Electronic Discovery matters and large-scale document reviews and productions.

SBD: How have you used animation in legal cases? For which kinds of cases is animation most useful?

DM: I have used animation in approximately a half-dozen cases. Most of the cases were product liability cases; one was medical malpractice and one was a negligence tort involving a slip-and-fall in a department store. Animations are most useful when they accurately summarize and simplify a complex mechanism or physical situation.

SBD: During mediation, an animation demonstrating the expert testimony a jury would hear at trial can have a profound impact on the opposing party. How can this convince them to settle during mediation? If they hope to capitalize on any confusion resulting from complex testimony at trial, how can an animation that clearly represents this testimony convince the opposing party to settle?

DM: Because of the cost and attention necessary for producing animations, they are rarely used during pre-trial alternative dispute resolution. The earlier in a case that they are unveiled, the higher the chances that the opposition will find a way to exclude them from trial. Animations are normally kept as "ace-in-the-hole" exhibits, however it's possible that they could be brought out during mediations to show how easy it would be to present one side of the dispute in a clear and convincing manner to the jury.

SBD: Admissibility as evidence is key to using animations effectively. How can a side ensure the animation will be admissible if the case goes to trial?

DM: It is virtually impossible to ensure admissibility of an animation unless every single facet of the clip can be substantiated by irrefutable facts. Thus, it is very important to keep animations very, very simple and not take any artistic license. Any deviation from or exaggeration of a physical situation is likely to be objected to -- potentially making the entire animation inadmissible.

SBD: A South Carolina court recently stated that concerns about the prejudicial effect of animations "are diminishing as judges and the public become more familiar with computer technology." How does this familiarity, as well as the opportunity for cross-examination of witnesses at trial, impact the risk of prejudice for animation?

DM: In "Chicago", Richard Gere is ready to speak to the jury when the announcer says, "Ladies and Gentlemen! A tap-dance!" The courtroom is not show business, but only in the same way that an election isn't a popularity contest. There are a set of rules that everyone must follow. This does not mean that you cannot make a fantastically effective presentation while operating within these rules.

The prejudicial effect of animations is certainly being negated as juries begin expecting multi-media presentations to clearly state an argument.

SBD: It seems that communication between the animator and the legal team presenting the case is critical to producing an accurate, admissible animation. How do you ensure that the animation faithfully represents spoken testimony?

DM: More importantly, an animation must represent the irrefutable facts of the case. An excellent way of ensuring this is by looking to facts and evidence presented by the opposition. Attorneys are obviously less inclined to object to facts they themselves have admitted.

SBD: How might a plaintiff's use of animation differ from a defendant's?

DM: A common mistake is to think that plaintiffs' presentations are more fantastic or flashy than those of defendants. All litigants are subject to the same laws and balancing test between the probative value and the potential prejudicial effect of any piece of evidence.

SBD: In practical terms, what are some of the limitations of animation for trial use? What can animation not accomplish?

DM: Animations absolutely cannot show or imply any fact not absolutely substantiated by undisputed evidence. It's greatest purpose is to reinforce, not reinvent or in any way alter the facts.

SBD: While animation can never completely replace descriptive narrative, when an entire courtroom views an animation - judge, witnesses, jury, everyone - and the events depicted are determined to be substantially true, how important is it in establishing the facts of a case? How much persuasive power does an accurate animation hold?

DM: Animation can be unbelievably effective in summarizing a particular version of the facts in a case. It's power lies not only as a tool for effective communication, but in making a series of events tangible to a jury. Chances are, when deliberations begin on a case, the jury will immediately begin talking about closing arguments and effective animations and multi-media presentations. These are the parts of a trial that stick in their mind and help to decide cases.