The Use of Video at Trial: A Potentially Powerful Tool

Two attorneys, well dressed and prepared for trial, sat at a long table nearest the judge. One of them, jurors would late comment, looked like Tony Bennett, the entertainer. Their clients were not present for the jury selection. The 67-year-old mother in ill health needed a walker to get around. Her 15-year-old daughter, Roe Ann Lockhart, was wheelchair bound, and her attention span was somewhat compromised by the incident. It had the makings of a very difficult trial.

As she crossed the street in a south suburb of Chicago, just blocks from her home, she was truck by a YMCA van driver who admitted he was late for an appointment and was aware of school children in the area. She was twelve then. Her head crashed into a windshield, and she was thrown into the street where a Good Samaritan protected her by parking her care to block traffic until paramedics arrived.

Opening statements proceeded and a two-week trial on liability and damages ensured. After deliberating about six hour, the jury returned a verdict of not guilty. Following motions that were brief, the court reversed the verdict based upon misconduct of the defense counsel.

About a year later, I received a call from the plaintiff’s attorney asking if I would re-try the case. As a long-time friend, I agreed to do so, and six months later, the case was assigned to a different trial judge, the initial judge having been reassigned to a different division.

I approached the case with a different strategy. I had the driver dismissed as a defendant so that he would not be presented in the courtroom for all of the proceedings. I wanted to depersonalize the defendant, making it more the institution that it was. At the same time, I personalized the plaintiff more, bringing her to life in a sit-down conversation in front of the jury. Some of the jurors were moved to tears upon hearing the young lady talk of her dreams now laid to waste and her life as it is today. I updated a progressive video that demonstrated her struggles with day-to-day life.

As the re-trial, the jury returned a verdict of $15.8 million the included my expert’s testimony regarding figures for her necessary future medical care. Post trial interviews indicated jurors were not comfortable with the defendant’s black and white, all-or-nothing approach. Instead, I shared with them the same concerns and doubts I had about the case, and they could see how I reconciled the facts to reach a decision for the young girl. Explaining her injuries and future care through experts and family testimony certainly is a necessity, but just as important in this age of technology is showing it in moving pictures. A Chicago videographer produced the progressive video, following the young girl over a period of years, documenting a video for the first plaintiff’s lawyer and then updating it later so that the jury could see how she had degenerated in recent years and how much harder her life had become as she aged.

The defendants showed a video – a home movie of the scene taken by the YMCA driver’s friend just hours after the incident. Frankly, it raised more questions with the jury than it answered, many of them voicing suspicions in post-trial interviews of the driver who appeared to need to protect himself at a time when the 12-year-old was fighting for her life.

In this age of tort reform, I have found that the use of video has taken a new turn. Although Roe Ann’s case did not involve medical malpractice, the use of video in her case went more to the issue of future medical care, rehabilitation and occupational therapy. Our experts and the video demonstrated the need for round-the-clock attention for her for the remaining anticipated sixty years of her life. My expert estimated that care would cost approximately $9 million, which the jury accepted.

In post-juror interviews, one said that the twenty-minute video allowed him to see how difficult it was to watch her grown into a large young woman with an eating disorder, and it showed her inability to get around at a weight of about two-hundred pounds. Another juror called it heart wrenching to watch the young woman crawl on her padded knees to get around. In post-trial interviews, another juror said the tape was helpful to understand that this girl could not be on her own and could not take care of herself. Another said, "I definitely think it was important to see what shape she was in. We had the video of what she was doing."

In the 1990s, I hired that same videographer to produce a progressive film on internationally acclaimed violinist Rachel Barton, who was severely injured when a commuter train dragged her for several hundred feet then ran over her legs. She followed Rachel over a period of years so that the jurors could see the enormous rehabilitation, physical work, mental strain, and pain and suffering that my client went through in order to walk into the courtroom on crutches. It was not an easy process and those moments were captured on tape, albeit silent, so that the jury could see her excruciating struggles. Again, demonstrating the need for future medical care was critical, and the video brought it to life.

Also significant was the fact that Rachel would never show anyone her legs because she felt her health was a private matter. At trial, however, it was necessary for the jury to see her permanent disfigurement and scarring. The tape was shown once to the jury and to those present in the courtroom to witness the horrific physical injuries she endured. The video was then embargoed so that the media could not later show it to the public, and it became her personal property so that her privacy on this matter remained protected.

Although Rachel’s tape was run silent, as was Roe Ann Lockhart’s, seventeen years ago, a tape was run with sound in the precedent setting case of Oakley Lowe. He was an 11-year-old Boy Scout who was severely injured in a tragic accident while traveling to a scouting jamboree with a volunteer behind the wheel. The little boy was in a coma for eight months with a broken skull and terrible permanent injuries, including the inability to process information and communicate it. For the first time, the court allowed the tape to be run with sound because it accurately portrayed the plaintiff’s condition and its probative value outweighed any prejudicial effect. That case resulted in a $14.2 million verdict in 1990.

Based upon that standard, courts have been allowing video evidence in an effort to keep up with technological advances. As trial lawyers, we have moved from diagrams to photographs to video to computer animations to yet-to-be understood demonstrative aids such as holograms. It is clear, though, that lawyers must lay a proper foundation in introducing the evidence with experts or other witnesses.

In the recent case of Spyrka v. County of Cook¹ the court examined foundational requirements

 involving computer animation in medical malpractice cases. There, although the plaintiff’s expert testified that the animation depicted the decedent’s condition to a reasonable degree of medical certainty, the court was troubled by cross examination that revealed that the expert had nothing to do with the creation of the video animation and that it "generically" supported his opinions.

Generally, I introduce video demonstrative evidence under two circumstances: case specific video created in concert with the experts or treaters who vouch for its accuracy, or "storeroom shelf," ready-made video that is commonly available and case neutral that can be fairly used by both sides  as an aid for the jury. I follow the parameters set out by Spyrka and those cited in Cisarik v. Palos Community Hospital. ²

"Before a film can become evidence at trial: (1) a foundation must be laid by someone having personal knowledge of the filmed subject, and the film is an accurate portrayal of what it purports to show; and (2) the film’s probative value cannot be substantially outweighed by the danger of unfair prejudice."

In Spyrka, the appellate court held that the video could not be used because the expert could not say what actually happened in the plaintiff’s case to cause her death, and he "could not state that the animation was an accurate portrayal of what it purports to show." Although absolute factual certitude has never been standard, the appellate court found that the computer animation there "present[ed] as a fact at lease one aspect for which plaintiffs have identified no support in the record."

The trial court called the animation a "demonstrative aid," but the appellate court found that the computer animation that depicted how the decedent’s blood clot had traveled from the lower body to her upper body, causing her death, amounted to substantive evidence. The appellate court saw it as evidence that "purport[ed} to show, in a step-by-step fashion, what happened to [the decedent] in this case," depicting the plaintiff’s theory of causation for which its own expert "could not state that [it] was an accurate portrayal of what it purports to show." The appellate court decided that th is particular three-minute video animation should not have been introduced at trial, and it reversed and remanded the $17 million verdict against Cook County for a new trial on the grounds that it was prejudicial.

Computer animations are highly sophisticated evidentiary tools, and the Spyrka appellate court did, however, cite other cases where demonstrative video evidence was properly admitted. The only other case in Illinois where computer animation has been considered is Dillon v. Evanston Hospital.³

There, the Illinois Supreme Court affirmed the use of the video animation in explaining an expert’s testimony to the jury that depicted a bacterial infection in the heart that spread to the brain. The Court concluded that even though the video displayed a type and location of infection different from the infection from which the expert opined that the plaintiff might suffer in the future due to the defendants’ negligence, "the video animation would be helpful in explaining to the jury the general development of endocarditis, a condition for which plaintiff is now at risk." In a brief discussion, the Illinois Supreme Court found that cross examination of plaintiff’s expert about the videotape would have avoided any confusion for the jury.

At this writing, an April 27 trial date is set in Spyrka and Cook County admitted liability, according to plaintiff’s counsel, He also said that he intends to introduce the same evidence in a limited way, if not by computer animation, through his expert describing what happened through boards, diagrams, charts, models and still shots of the computer animation at the re-trial.

It is clear, video evidence will still be allowed for demonstrative purposes at trial in Illinois. In Velarde v. Illinois Railroad Co.⁴ the Illinois appellate court found that a twenty-two minute day-in-

the-life video introduced the day before trial was allowable because it accurately depicted the plaintiff engaging in commonplace activities in a manner that conformed to her trial testimony about her injuries and disabilities. The jury found in favor of the plaintiff for $54 million; the defendants’ request for a new trial without the video was denied.

In Spyrka, an issue also existed re-regarding the timing of the production of the video. Plaintiff showed the video to opposing counsel and the trial judge three days into the three-week trial, when the video had just been completed, and the defendants’ request to make some changes was denied because the nature of the animation did not easily facilitate changes. Plaintiff in Velarde, however, allowed the defense counsel, not only to see the vide just prior to trial bu tallowed them to edit it as well as remove all sound. Production of the video just prior to trial was not an issue because defense counsel also were working on a diagram at the time, and the parties were still exchanging demonstrative exhibits.

The Velarde court found, "Throughout the film, [plaintiff] appears anxious and easily confused and she is frequently tearful. In our opinion, however, the film does not dwell on her discomfort. Additionally, the film seems to illustrate the impact of head trauma and possibly resulting medication on [plaintiff’s] life, consistent with witness testimony indicating, as examples, that [plaintiff] took medication prescribed by her neurologist, had difficulty sustaining attention, needed someone to ‘cue her in’ and give reminders, could not think flexibly or find solutions to problems, could not manage utensils, and was frustrated, fearful, anxious and extremely depressed. Testimony to that effect would have been given even if the illustrating video was never presented to the jury."

Certainly, video can be a powerful tool. The unique attributes of video animation can be used at trial, with proper foundation and instruction, so as to better inform the jury of issues that may not be explained as well through diagrams and other one-dimensional demonstrative evidence. We will likely see more cases on t his type of evidence as it becomes used more often at trial. I use video in many aspects of my practice, and I include it in settlement brochures prior to trial. I certainly would not enter a courtroom without t his type of helpful evidence. Holograms will be next. I can’t wait.

Endnotes

1. Spyrka v. The County of Cook, 366 Ill.App.3d 156, 851 N.E.2d 800 (1^st Dist.2006), petition for

leave to appeal denied, No. 103046 (decided Nov. 29, 2006).

2. Cisarik v. Palos Community Hospital, 144 Ill.2d 339, 341, 579 N.E.2d 873 (1991).

3. Dillion v. Evanston Hospital, 199 Ill.2d 483, 771 N.E.2d 357 (2002).

4. Velarde v. Illinois Central Railroad Co., 354 Ill.App.3d 523, 820 N.E.2d 37 (1^st Dist.2004), petition

for leave to appeal denied, 214 Ill2d 553, 830 N.E.2d 9 (2005).