The Use of Next Generation Visual Evidence and Its Importance to Expert Witness Testimony and Presentation.

Transcription

1 The Use of Next Generation Visual Evidence and Its Importance to Expert Witness Testimony and Presentation. National Trial Lawyers Summit January 18-21, 2015 Daniel L. Buckfire Buckfire & Buckfire, P.C Northwestern Hwy., Ste. 890 Southfield, MI (248) Daniel Buckfire is a partner with the law firm of Buckfire & Buckfire, P.C. He has been practicing personal injury law, with a specialization in auto accident cases, for twenty-two years. He received his undergraduate degree from the University of Michigan Ross School of Business and his law degree from the University of Michigan Law School. 1

2 It has been said that seeing is believing, and a picture is worth a thousand words. This cannot be more true for a Plaintiff s lawyer who is attempting to prove liability or demonstrate the seriousness of his or her client s injuries to an insurance adjuster, defense attorney, mediator, arbitrator, judge or a jury. Importance of Visual Evidence Modern research studies show that about 75 percent of what people know is learned through visualization. (Kathleen Flynn Peterson, Enhanced persuasion: Effective use of demonstrative evidence at trial, Advocate, January, 2010). A seminal study published in 1963 by Harold Weiss and J.B. McGrath Jr. revealed that after a 72-hour period has elapsed, humans tend to retain only 10% of the information they hear and 20% of information that they see. When humans hear and see the same information, they retain 65% of the information. This is an incredible 650% increase over information that is just heard by a human (Trey Cox, The Jury Rules [ December 21, 2012). Additional research indicates that people perceive information that they see as being more reliable than information that they hear, and that all information is put together in an optimal fashion by the brain. (Witten, IB, Knudsen, El. Why seeing is believing: merging auditory and visual worlds. Neuron Nov 3;48(3):489-96). 2

3 A recent poll by Gallup in 2013 confirmed that most Americans obtain their information from television, which of course utilizes both auditory and visual means to convey information. What Does this Mean for the Personal Injury Lawyer For the personal injury lawyer who wants to maximize the recovery for his client, it is absolutely necessary that visual aids be used in connection with expert testimony regarding liability and the client s injuries. A jury that can visualize the accident and the injury while the expert is testifying will be much more likely to understand the accident and the client s injuries and its impact on the client, and also retain this information much better during the course of the trial and when it returns to the jury room. In today s world, where much of the jury has grown up watching law shows, such as CSI and Law and Order, the jury will expect that the evidence presented during a trial will include evidence that is visual in nature. A lawyer will have a much better chance at persuading a jury of liability and his client s damages when the jury is better able to understand the accident and his 3

4 client s injuries and is interested in the subject. An attorney who tries a personal injury case without visual evidence will be at a distinct disadvantage in prosecuting the case. The Use of Substantive and Demonstrative Visual Evidence "Substantive evidence" is evidence involving an actual thing in the case, such as a DNA sample, a photograph of damages to an automobile or of an accident scene, medical records, or an x-ray, MRI or CT scan. Demonstrative evidence" is not actual evidence but is used to assist the jury in the understanding of real evidence. Demonstrative evidence is visual in nature, and can be effective in explaining complex issues to a jury. Also, many times, a jury will be more interested and engaged in a case where demonstrative evidence is used as an aid in the case. Substantive evidence is admissible under the Rules of Evidence usually as an exception to the hearsay rule, such as a business record or a medical record. If the evidence has been authenticated and a foundation has been laid for its admissibility, substantive evidence will be admitted as long as the evidence is relevant, and the probative value of the evidence outweighs the prejudicial value of the evidence. Demonstrative evidence may be used to assist the trier of fact in a case but may not be admissible. A foundation must be laid by a witness that the evidence is a fair and accurate representation of what is being depicted. The more accurate the representation, the more likely that the trial judge will allow the demonstrative evidence to be shown to the jury. Visual Evidence Used in Personal Injury Cases It is clear from the studies discussed above that expert testimony is most useful when it is combined with compelling visual evidence. The jury will be much better able to understand and 4

5 retain information from the expert witness when visual evidence is used while the expert is testifying. An attorney s arguments regarding liability issues and the damages and the value of the case will much more persuasive if the jury can visualize the accident and can actually see the injuries, and not rely strictly on the testimony of a liability expert or a treating doctor. The types of visual evidence that have been used in personal injury cases to demonstrate liability and injuries are as follows: 1. Models many attorneys will utilize a model of a skeleton or a specific body part to help explain a client s anatomy and injuries. These can be cost effective tools for explaining and demonstrating injuries, but will not be appreciated by a jury who is expecting a high tech presentation and may be bored by a low tech exhibit. 2. Photos of Injuries, Vehicle damages, and accident scenes these types of visual evidence can be very cost effective and helpful in explaining an accident or injuries, but have inherent limitations in helping to explain complex liability and medical issues to a jury, and like models, may not be fully appreciated by a jury. 3. Medical illustrations these are artistic depictions that detail an individual s injuries. Attorneys can purchase stock illustrations or hire a medical illustrator to create an illustration specific to the client s injuries. These static 2D renderings that are often expensive, and because they are artistic renderings, many times will not be admissible. Also, many jurors in the 21 st century will not be impressed by the illustrations and find them boring. 4. Medical and Accident Animations like medical illustrations, animations are artistic videos created to illustrate a client s injuries or demonstrate how an accident occurred. These videos can be very expensive and are often used in only the high 6 figure to 7 5

6 figure personal injury cases. Although jurors will find animations to be interesting, they are not real evidence, and are still artistic renderings. An attorney who spends several thousands of dollars on a medical or accident animation faces a risk that the animation will not be admissible during a trial. 5. 3D Volume Renderings are 3D videos of actual MRI or CT scans created by software which translates the native data from the scans into a 3D visualization. This technology has been used in the medical field for approximately the last 15 years, and is widely accepted as a surgical planning tool at major hospital systems throughout the country and is utilized to explain medical images to patients. Recently, a few software companies have introduced 3D Volume Renderings to the legal profession. The 3D renderings are based on the actual data from the MRI or CT scans (which are admissible themselves), and the software that creates the renderings is FDA cleared. Because the 3D volume renderings are of the client s actual anatomy based on real data from the MRI and CT scans, the 3D videos are admissible as substantive evidence. Because the software automates the creation of the 3D videos, the 3D volume renderings are affordable for all cases. Further, an expert witness will be able to utilize the 3D video of the actual injuries in educating the jury of the client s injuries. The jury will find this type of visual evidence to be more interesting than the other forms of visual evidence as it is high tech and very captivating. Conclusion It is clear that an attorney trying a personal injury case must use visual aids while his liability or medical expert witness is testifying to prove liability and to best persuade a jury of the significance of his client s injuries. The studies have shown that testimony 6

7 combined with visualization is the most effective means of persuasion. A new technology, 3D volume renderings, is an exciting game changing technology that will change the way that personal injury cases are handled in the 21 st century. 7