The Presentation of a Complex Personal Injury Case Can be Streamlined and Enhanced Through the Use of Currently Available Technology
Written by Julian Sweet, Retired
As late as 1998, some legal scholars were still warning against the use of “computerized ‘razzle-dazzle’ [which could be]… used to Disney-up the evidence.”1Now there is a manual, Effective Use of Courtroom Technology: Judge’s Guide To Pretrial and Trial, published by the Federal Judicial Center and the National Institute for Trial Advocacy,2 which offers a guide to common objections that courtroom technology has raised thus far. Since most of the objections the manual lists concern the method of using the technology, rather than the technology itself, the obvious conclusion is that proper use of the equipment will not only be allowed but is expected in courtrooms. See Parker et al., Preparing Evidence for Trial: the Use of Demonstrative Evidence and the Strategy of the Motion in Limine, PLI Order No. 11091, 921, 939 (Oct. 2007). Thus, any attorney who plans on trying any kind of complex case, including medical malpractice, must be conversant with the modern means of proving the case.
A. Elements of a medical malpractice case.
To prove a claim of medical malpractice under Maine law, a plaintiff must establish: “(1) the appropriate standard of medical care, (2) the defendant’s deviation from that recognized standard, and (3) that the conduct in violation of that standard was the proximate cause of the plaintiff’s injury.” Ouellette v. Mehalic, 534 A.2d 1331, 1332 (Me.1988); Cox v. Dela Cruz, 406 A.2d 620, 622 (Me.1979); Caron v. Pratt, 336 A.2d 856, 858-60 (Me.1975). Ordinarily, to sustain his burden, a plaintiff must also produce expert testimony. Cox, 406 A.2d at 622; Cyr v. Giesen, 150 Me. 248, 251, 108 A.2d 316, 318 (1954). The only exception to this general rule is “where the negligence and harmful results are sufficiently obvious as to lie within common knowledge. . . .” Dubois v. U.S., 324 F.Supp.2d 143, 148 (D. Me. 2004); Patten v. Milam, 480 A.2d 774, 778 (Me.1984); Cox, 406 A.2d at 622; Cyr, 108 A.2d at 318; seeSimmons, Zillman & Gregory, Maine Tort Law § 9.06 (2004 ed.).
The Maine Health Security Act regulates medical malpractice actions generally. See Jacobs v. Painter, 530 A.2d 231, 240 (Me. 1987)(dissenting opinion tracing history of act). The statute defines “actions for professional negligence” broadly as encompassing “any action for damages for injury or death against any health care provider . . . whether based upon tort or breach of contract or otherwise, arising out of the provision or failure to provide health care services.” 24 M.R.S.A. §2502(6).3
The standard of care applicable to the defendant and its agents is generally “that degree of skill and knowledge ordinarily possessed by physicians in [the physician’s] branch of medicine. . . .” Downer v. Veilleux, 322 A.2d 82, 87 (Me.1974). Malpractice liability premised on breach of a duty to disclose, however, no longer rests entirely on Maine common law. Section 2905 of the Maine Health Security Act, 24 M.R.S.A. §§ 2501-2961 now provides that a physician’s duty to disclose is measured by “the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities …” 24 M.R.S.A. § 2905(1)(A) (emphasis added).4 Moreover, the disclosure must be made in such a manner that “[a] reasonable person [cf. Downer,322 A.2d at 90 (“patient of ordinary understanding”) ], from the information provided by the physician under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatment . . .” 24 M.R.S.A. § 2905(1)(B).5
While the elements which need to be proved are the same in any malpractic case, the proof itself can be simple or complex. More and more, as technology allows greater diagnostic and treatment options, that proof tends to be of the latter persuasion. It only makes sense then to use technology to present that evidence.
B. Trial presentation software.
As Maine attorneys well know, computers are already being used for both in-court presentation as well as behind-the-scenes case management. The first capacity yields efficient communication in court or settlement negotiations; the latter provides organization of, and easy reference to, thousands of pieces of information from discovery up through trial. See Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. Law & Tec 161, 177 (2000).
At trial, computer-aided evidence is directly helpful in several situations:
• when the visualization of an event, object, or condition is complicated and may be difficult to explain verbally;
• when the “real time” of the event is important, such as the timing of an automobile accident;
• when physical re-creation of the event or condition is impossible or impractical;
• when the event or principle to be explained depends on many, related, and dependent factors that render the subject too complex for mere verbal presentations;
• when other visual presentations may not be sufficiently flexible to yield a complete and clear explanation; for example, a video may not allow views from different perspectives to enable the jury to perceive events happening simultaneously beyond the camera’s eye.
Parker et al., supra, PLI Order No. 11091, at 947.
There are also incidental benefits from using such technology. First, technology speeds up trials saving not only attorneys but the court system money. There is less shuffling of papers. Lawyers can impeach from the lectern and jurors can simultaneously observe evidence through the monitors. Using technology reduces time needed for set-ups, such as rolling in a VCR or fumbling with a three-legged easel. See Nicole J. DeSario, Merging Technology with Justice: How Electronic Courtrooms Shape Evidentiary Concerns, 50 Clev. St. L. Rev. 57, 62 et seq. (2002-03).
Second, technology used wisely improves the jury’s ability to understand and retain information. Research shows that the use of visual aids with an oral presentation can facilitate comprehension and increase understanding and retention levels by as much as sixty-five percent. Additionally, information which is perceived by the individual from a variety of methods (aural, visual, and written) is retained and understood at a substantially higher level. DeSario, supra at 63 et seq. This is of direct benefit in medical malpractice cases. Technological exhibits are not solely introduced to add “sparkle” to cases, or “entertain” or even “dazzle” easily-bored jurors,6 as much as they are simply necessary to explain the complexities of the case so that the jury can understand the factual issues involved before they attempt the more difficult task of determining how to resolve them. Id..
Finally, as more courtrooms become adapted for technology use, that use actually evens the playing field for counsel, who once utilized such technology only if their client had very deep pockets.
There are a number of technology options available, from the simple to the sublime.See generally Kathryn Burkett Dickson, The Use of Technology at Trial: Tools, Rules, and Techniques, ABA Labor and Employment Section, Midwinter Conference (2005); Parker et al., supra, PLI Order No. 11091, at 929 et seq..
LiveNote (http://www.livenote.com) allows the court reporter to send an unofficial copy of a trial transcript directly to counsels’ and judge’s laptops. The software allows for quick searching and annotating of text. It also can send a transcript to a courtroom screen for a hearing impaired juror. The system also allows the judge to quickly review past statements in the event of objections.
A number of other products offer compatibility with LiveNote, including the ability to capture the LiveNote “stream” distributed by a court reporter.
Document and database management, and “litigation support” software such asSummation (http://www.summation.com ) and Microsoft Access allows counsel to store and electronically access documents, summaries, deposition transcripts, and case notes. See generally Paul Mitchell, Development of a Case Management System: One Firm’s Approach, LAW. PC, Feb. 1, 1991, at 7 (describing the conversion of one law firm’s practice from using manila envelopes as a case management system to computerized case management). See also Margaret H. Warner, Case Management Software Eases Burden in Complex Litigation, N.Y. L.J., May 18, 1998, at S6 (describing how computerized case management has helped significantly in tracking and retrieval of paperwork for complex litigation). Many software packages designed to provide case and matter management for law firms offer document management features that be used during litigation.
Microsoft PowerPoint is familiar to many attorneys and jurors. It allows the creator to present information sequentially, in an organized “bullet-point” fashion. The sequential nature of PowerPoint limits its utility at trial, where flexibility and the ability to call up any image on demand are paramount.
TrialDirector (http://www.indatacorp.com/Products/Trial/trialDirector.aspx) and Sanction II (http://www.sanction.com/software/index.asp) are the two leading presentation programs with significant trial capabilities. Both run on the Windows operating system, cost $595 for a single user license, and include a number of powerful features, including:
• Store and organize vast amounts of evidence – documents, transcripts, photographs, videos, etc. The evidence is stored in a database, which includes an image of the original along with other associated information;
• Annotate images with highlighting, text, arrows, and other graphics;
• Add descriptive information to the database record for each image, including author, recipient, date, issue, witness, and notes, that can later be used for searching and sorting;
• Allow counsel to call up and display any piece of evidence in a rapid and non-linear manner. User can call up evidence using keystrokes, barcode reader, or point and click;
• Manipulate images in front of jury by zooming, highlighting, and displaying more that one image simultaneously;
• Synchronize deposition transcripts with video and display the video and transcript simultaneously. Objections can be edited out of the video and clips can be called up quickly by selecting the text.
Visionary (http://www.freevisionary.com/) is another Windows program that provides many of the features available in Sanction II and TrialDirector. Visionary offers a free version that may provide all of the features some lawyers require. Clarity Legal Software offers TrialSmart for the Mac operating system (http://www.claritylegalsoftware.com/trialsmart.html). This software provides functionality that is close to that of the leading programs and sells for $249.
C. The necessary equipment.
In order to efficiently prepare a case for presentation and effectively present that case to a jury, a number of pieces of equipment are required. Some of this equipment is already available in the majority of offices. Some of it may be available at the location of the trial or hearing or can be rented for trial.
• Scanning – In order to present documents in electronic format, they must either start as electronic documents (digital images, videos, electronic mail) or be converted into an electronic format. Paper documents must be scanned. The majority of documents will be scanned in black and white, though some may need to scanned in color. Many offices use copiers that are capable of scanning large volumes of black and white documents. In that context, an inexpensive color scanner can be purchased for under $200 to allow for the scanning of photographs and color documents. A single sheet feed scanner, such as the Fujitsu Scansnap, can scan color an black and white documents at a relatively high speed (18 pages per minute) for under $500.
• Laptop computer – Most modern, business oriented laptops with the capability to output to a second display will be powerful enough to run the software described above. InData recommends an Intel Core 2 Duo processor running at 2.33 Ghz or faster to run TrialDirector. Sanction II requires at least a Pentium 4. A computer with extra memory and a more powerful graphics card is preferable for the presentation of video content.
• Projector – These have become much more affordable over the last few years. For trial presentation purposes, attorneys should look for a projector with at least 3000 lumens (which is a measure of how bright an image the projector can produce) and XGA (1024 x 768) resolution. Portable projectors meeting these requirements are currently available for less that $1500.
• Screen – For trials occurring in most Maine courthouses, counsel should plan to bring a high quality portable screen. The screen should be 4:3 ratio and at least 80″ diagonal. Quality screens meeting these specifications retail for approximately $500.
• Other equipment – Some attorney may find laser pointers, remote controls, portable scanners and printers, and other accessories helpful, but they are not essential to present a case at trial effectively. Given the setup of many courtrooms in Maine, any attorney attempting electronic presentation should come prepared with long extension cords and video cables, as well as power strips.
D. The necessary personnel.
Presenting a case at a trial or other hearing requires all of the mental capacity of an attorney. Electronic presentation should ease, rather than increase, the burden on trial counsel. However, electronic presentation creates additional demands and requires attention during the course of a trial. For these reasons, we believe that no attorney should attempt electronic presentation at trial without assistance. This assistance can come from an associate or partner attorney, trained staff member, or outside consultant. This person should be responsible for setting up the necessary equipment and running the presentation software during the proceedings. It is essential that the software operator understand not only the workings of the chosen trial presentation software, but also understand the operation of the projector and screen and the interaction between all of the equipment. In the context of a contested legal hearing, it is simply not a wise decision for lead trial counsel to attempt to do all of this by himself or herself.
E. Assembling the electronic presentation
There are three phases to the process of electronic presentation – getting the materials into an electronic format, bringing those materials into the chosen software, and presenting the materials at trial. While only the middle phase requires significant training and expertise, a careful approach must be employed to make the entire process as efficient as possible and to make the presentation at trial effective.
At trial, the attorney presenting an opening statement or closing argument or examining a witness must be able to call for the display of any image easily and with no advance warning. The software operator must be able to call up anything requested within seconds. To meet these requirements, each page of each document must be identified in both the physical and electronic world. While there are a number of ways to accomplish this task, this is the method that we have employed in medical malpractice cases.
• All pages of the medical record are Bates stamped prior to production during discovery. A Bates stamped record is used at trial and an electronic version of that record is loaded into the trial presentation software. The record for each medical provider is stamped with a prefix for that provider. For example, the record from Maine Medical Center would begin at “MMC001” and continue for however many pages exist. The Bates stamped records are used at deposition, so that any records utilized at deposition can be easily identified on the transcript.
• When the scans of the medical records are brought into the trial presentation software, each page (image) is named in accordance with its Bates stamp. If the paper version of the page is stamped MMC001, then the electronic image is named MMC001. When a multipage document is loaded into the software, the program can automatically name the pages at the time of the import. The second page of the import will be named MMC002, the twentieth MMC020, and so on.
• Exhibits that are not part of the medical records are assigned names in a logical manner. They may be named using exhibit numbers (e.g. “EX002”). If an expert witness has produced a report that may be shown to the jury, the report might be named after the expert in the electronic database (e.g. “SMITHREP001”). Charts, graphs, or other demonstrative exhibits may be assigned demonstrative exhibit numbers (e.g. “DEM001”)
• All pages of all documents to be presented must be identified. If expert Smith’s report is fifty pages in length, each page must be numbered, so that the attorney can call for any page at any time (e.g. SMITH050).
Using these steps, the attorney preparing for trial can work with a set of paper documents that are identified with Bates stamps or other page numbers and then call for any page of any document without any advance preparation with the operator of the trial presentation software. We have found that the fastest way to access the electronic documents is to call for them using keystrokes. Here are several examples.
• The attorney can say, “Doctor, please turn to page 12 of the Maine Medical Center record.” This page can be retrieved quickly by the operator typing MMC012 and enter.
• If the attorney asks Dr. Smith to turn to page 43 of her deposition, the software operator can retrieve that page by typing SMITHDEPO043 and enter.
• Exhibit 5, a photograph, can be displayed simply by typing EX005 and enter. Multiple page documents entitled “Exhibit” required a slightly modified naming strategy, where the exhibit number is contained in the prefix and the page number follows, e.g. “EX1001”, which would display page 1 or exhibit 1.
Successful electronic presentation requires an obsessive focus on details and careful planning for failures. Any incorrectly labeled or identified pages will not be displayed. Computer equipment and/or software will fail. Prior to trial, a complete backup of the electronic documents and the presentation software database should be created. A spare laptop and projector should be available in the event that any of the equipment fails.
F. Laying the proper foundation for electronic display during trial.
Technology can enhance the presentation of information; but information is not evidence and in using any technology the standards for admissibility must be kept in mind.
Generally, in order to gain admissibility as evidence:
(1) the offered exhibit must be “relevant,” that is, tend to prove something that legally matters in the case; (2) the probative value of the exhibit must not be substantially outweighed by the dangers of “unfair prejudice,” to mislead or confuse the jury, waste time, or be unnecessarily cumulative; (3) it must be what it purports to be – i.e., it must be identified and “authenticated”; (4) it must not contain hearsay, or if it does, there must be an exception to the hearsay rule that would allow it in;(5) if proving the contents of a writing or recording, it must meet the “best evidence” or “original document” rule; (6) to the extent that it contains opinion testimony, rather than facttestimony – be it expert or lay opinion testimony – it must conform to certain requirements regarding opinion testimony; (7) if it is offered as “scientific” evidence, then it must satisfy certain criteria to qualify as scientific evidence; (8) it cannot violate any other rule of evidence pertaining to the general admission of exhibits; and, finally, (9) if used solely as demonstrative evidence in court to accompany and explain live testimony or attorney argument, then it may be allowed only at the trial judge’s discretion.
Galves, supra 13 Harv. J. Law & Tec at 209-10 (footnotes omitted).
(1) Types of evidence.
There are at least four categories of frequently offered computer-generated evidence as to which no computer-specific foundation is usually necessary, unless the opponent raises a genuine issue as to the trustworthiness of the exhibit. SeeJoseph, A Simplified Approach to Computer-Generated Evidence and Animations, ALI-ABA Course of Study, 641, 646 et seq. (February 28 – 29, 2008).
Simple demonstrative evidence such as charts, graphs and diagrams7, are admissible if they are fairly accurate, are judged helpful in understanding the matters at issue, and any deficiencies are made known to the factfinder. Joseph,supra at 646 & n. 1 (collecting cases). Exhibits of this sort today are commonly computer-generated rather than drawn by hand. The test of admissibility, however, remains the same. Id. at n. 2. Once a knowledgeable witness testifies that a graph, chart, diagram, or other demonstrative exhibit generated by a computer fairly and accurately portrays a relevant subject matter, the exhibit has been authenticated and may be received, without more, subject to Rule 403 (prejudice, confusion, waste of time, cumulativeness), Rule 611(a) (vesting in the trial judge discretion over the mode and order of the presentation of evidence), and, where applicable, Rule 1006 (charts, calculations and summaries permissible to present the contents of voluminous data that are independently admissible and have previously been made available to adversaries). Id. at 646-647.
Businesses and government offices generate innumerable documents by computer in ordinary course. A printout of this sort, prepared and maintained in accordance with Rule 803(6) or (8), is a “record” of the business or public office involved. Joseph, supra at 647 & n. 4 (collecting cases). Reliability and trustworthiness are said to be presumptively established by a showing that a computer printout was made in conformance with Rule 803(6) and actually relied upon in the regular course of an enterprise’s activities. Id. at 647 & n.5. Computer-generated public records that satisfy Rule 803(8) are presumptively authentic under Rule 901(b)(7) (provided that they derive from a “public office where items of this nature are kept”), Rule 902(4) (certified copies of public records self-authenticating), and Rule 1005 (certified copies of public records may be offered in lieu of originals).
Computer printouts associated with an adverse party may be admissions, within Rule 801(d)(2). Joseph, supra at 648 & n. 6 (collecting cases). After the proponent has offered proof that the computer output falls within one of the five types of admission catalogued in Rule 801(d)(2), it is the opponent’s burden to challenge the exhibit as untrustworthy or otherwise inadmissible.
Finally, since illustrative exhibits often do not go to the jury room, courts normally employ a less rigorous standard in reviewing them. But because of the impact computer-generated reconstructions and re-creations may have, a more stringent standard of review may be applied (assuming that admission or even use is contested8), regardless of whether they are nominally offered for illustrative or substantive purposes. Joseph, supra at 648. Courts may use some sort of weighing test under Rule 403 to assess the appropriateness of an illustrative aid, although it may not adhere exactly to that used to assess otherwise admissible evidence . For example, one district court referred to Rule 403 when it found that a chart containing various adjectives and adverbs of culpability in different sizes and colors was confusing and misleading. See United States v. McDade, 83 F.3d 153 (6th Cir. 1996). The Sixth Circuit later opined in United States v. Bray, 139 F.3d 1104 (6th Cir. 1998) that trial courts have “discretionary authority” to exclude illustrative aids if they fail to “clarify and simplify complex testimony or other information and evidence or to assist counsel in the presentation of argument to the court or jury.”
But an argument that an animation should not be allowed because it only includesone side’s version of the event should not be sustained under Rule 403. This is the same as arguing that since one lawyer has successfully pursued a line of questioning other lawyer failed to raise, the first lawyer’s successful line of questioning should not be allowed as evidence. Galves, supra 13 Harv. J. Law & Tec at 224. The standard under Rule 403 is, after all, unfair prejudice, not merely that the scales are tipped. “Another Rule 403 objection that should be overruled every time it is raised is that the ‘animation cannot be cross-examined’ like a live witness. Non-computer-generated evidence, such as charts, cannot be cross-examined either, but that does not mean that they should be excluded under Rule 403.” Id. at 225.
(2) Presentation objections.
Using technology to present any of this evidence may raise other technologically-specific questions under the Rules of Evidence. See Parker, supra at 938 et seq.; DeSario, supra, 50 Clev. St. L. Rev. at 65 et seq.
(a) Completeness — Rule 106. Completeness objections are raised when one side believes they ought to be able to supplement a document with other material, which under Rule 106, “ought in fairness to be considered contemporaneously with it.”Judge’s Guide, supra, at 182.
Traditionally, completeness objections applied only to “writings and recorded statements, including audio and videotapes in lieu of transcriptions.” Id. But Rule 611 has been used to object to photographs and videotape recordings. Rule 611(a)(1) states that the court has broad discretion to control interrogations of witnesses to “make the interrogation and presentation effective for the ascertainment of truth.” Objections are often raised under Rule 611 either: (1) when non-written evidence is unfairly edited (the corollary to the 106 completeness objection for writings); or (2) when one could argue that the limited scope of the material on direct examination will (in federal court) unfairly limit cross examination (used for both written and non-written material).
Completeness objections are often raised when courtroom technology is used because digital exhibits facilitate editing written documents, using text graphics such as pulled quotes, cropping photos, or presenting edited videotapes in court. Judge’s Guide, at 186. Since such forms of editing preceded the introduction of new forms of technology into the courtroom, however, analysis of the objection should not differ from prior analysis. Judge’s Guide, at 185. The digital equipment merely facilitates the presentation of computer-edited documents, which can be directly displayed on the court’s monitors.
Indeed, often, the technology is the solution to the problem: counsel is generally permitted to focus in on portions of a writing or photograph by using technology, so long as they first display the complete item. Id. Similarly, counsel may use technology to focus on aspects of three-dimensional objects, after displaying the full object, without causing evidentiary problems.
(b) Unfairness — Rule 403. Unfairness concerns occur when an item used in court, such as a document or photograph, has been materially altered, affecting its message. While such objections may be raised simultaneously with completeness objections, unfairness objections for digital displays generally are raised when the content of the document is altered, as opposed to a portion of it being removed. This objection is commonly interposed against several types of digital media, for example, playing video at a different speed or using still frames that might unfairly characterize the video. Judge’s Guide, at 185, 191.
Objections may be raised against digital photos where the margins have been altered. Changing a document’s margins can make a contract look denser and may be considered unfair. Id. at 198. Using a reshaping tool (stretching images), is usually found to be inherently unfair. Id. at 190. Likewise, presenting a night time photo with the iris wide open (allowing in more light) and a high contrast can make night images look more visible than they actually would appear at night. Id.
(c) Technology “Giving” Objectionable Testimony, Rule 611, 602, 703.
Computerized exhibits, used in direct examination, may “testify” on behalf of the witness in a way that is objectionable (i.e., by being leading or by presenting evidence that does not have the proper foundation). Lawyers must be careful not to display exhibits on the monitors that have “content or markings that will lead the witness in reciting testimony.” Id. at 199. Attorneys must also be careful not to place a photo or document prematurely up for display on the monitor because it may present a fact that either has not been admitted into evidence or is not within the range of matter that the witness may testify. Rules 602, 703.
G. Developing and integrating expert testimony and demonstrative evidence.
Regardless of the theory of liability and what entity is sued, expert testimony will almost certainly be required in a malpractice case.9 Simmons et al., Maine Tort Law § 9.06 (2004 ed.) Only “‘where the negligence and harmful results are sufficiently obvious as to lie within common knowledge,’” is expert medical testimony unnecessary. Cox v. Dela Cruz, supra, 406 A.2d at 622 (quoting Cyr v. Giesen, 150 Me. 248, 252, 108 A.2d 316, 318 (1954)); see also Hamor v. Maine Coast Memorial Hosp. supra, 483 A.2d at 722. Those claims are few and far between. E.g., Chasse v. Mazerolle, 622 A.2d 1180 (Me.1993)(where defendant performed sterilization procedure, the statute established the standard of care, and it was undisputed that defendant failed to comply with that standard, for purposes of resolving the motion for a summary judgment, no expert testimony was required); Rice v. Sebasticook Valley Hosp., 487 A.2d 639, 640 (Me. 1985) (in action against hospital alleging negligence following fall from chair in which plaintiff was seated as a part of treatment to restore her to ultimate activity in daily living, expert testimony was not required concerning the decision to allow patient to sit in the chair). See also Patten v. Milam, 480 A.2d 774, 777-778 (Me.1984)(expert testified that sound medical practice would require the physician to wash his hands and put on sterile gloves before setting a dislocated compound fracture of the toe; patient testified that the physician failed to do either and the patient developed an infection that required amputation of the toe; Law Court concluded that the absence of expert testimony on causation was not fatal, because “the causal link … is clear enough … to support a jury verdict….”); Walter v. Wal-Mart Stores, Inc., 2000 ME 63, 748 A.2d 961(in claim against pharmacy for providing wrong prescription, Court observed that “[i]t does not take an expert to know that filling a prescription with the wrong drug and failing to take the steps in place in that pharmacy to check for the wrong drug is negligence.”Id. ¶ 31, 748 A.2d at 972).
Expert witnesses are almost never eyewitnesses to events. Rather, they analyze information gathered after the lawsuit has begun and offer their expert opinions as to what the analyzed information means in order to help the jury understand the evidence. Galves, supra 13 Harv. J. Law & Tec at 258. It is at this juncture that Rule 702 and the Daubert10 or Williams11 requirements come into play.
However, a critical distinction should be made here. When an expert witness uses a CGE [computer generated exhibit] to help explain her verbal testimony to the jury, that CGE is a demonstrative exhibit only -. . .. In such circumstances, Daubert and Rule 702 should come into play only with respect to the underlying scientific testimony that forms the basis of the expert’s testimony, not with respect to the “science” of the display technology being used to illustrate the expert’s testimony. . . . The mere fact that the expert witness would use a computer animation to display or illustrate points in her testimony does not make the display technology itself the relevant science that must be analyzed under Rule 702 and Daubert, any more than had the expert witness used a chalkboard and pointer or overhead projector and transparencies.
Or as put by a court:
When the computer-generated evidence is used to illustrate an opinion that an expert has arrived at without using the computer, the fact that the visual aid was generated by a computer probably does not matter because the witness can be questioned and cross-examined concerning the perceptions or opinions to which the witness testifies. In that situation, the computer is no more or less than a drafting device. However, when an expert witness uses the computer to develop an opinion on the issue, the opinion is based in part on the computer-generated evidence. In that situation, the proponent of the evidence must be prepared to show that the computer-generated evidence was generated in a way that is scientifically valid.
State v. Tollardo, 134 N.M. 430, 453, 77 P.3d 1023, 1028 (2003).
If a computer generated exhibit goes beyond illustration of an expert’s opinion to become the basis of that opinion, as in a re-creation or simulation based on input data, then the exhibit is substantive in nature. It is being offered on its own merits and at that point would become subject to Daubert and Rule 702. The standard for the CGE, as well as any underlying scientific knowledge, is the Rule 702 scientific evidence standard under Daubert or Williams. See Galves, supra, 13 Harv. J. Law & Tec at 259 (footnotes omitted).
H. The use of electronic presentation on cross examination
Special computer software can add annotation capabilities — that is, color changes, arrows, “zoom in” effects, circles, check marks, etc. – to static images (a letter, contract, chart, photograph, map, etc., stored and projected by computer). This allows otherwise static images to be manipulated in various ways for emphasis or persuasive effect. But this is also not such a great departure from what was done already in courtrooms across the country. Galves, supra 13 Harv. J. Law & Tec at 179. “Witnesses often draw their path on a diagram, point to a section of a contract, or read a certain line from a letter or deposition that the attorney then highlights on a large posterboard enlargement of the document. The computer technology here, therefore, simply makes those functions easier, quicker, and more legible and understandable.” Id.
Using software like Trial Director, counsel can call up evidence via bar code readers and can enlarge or annotate portions of displayed images. In general, it allows lawyers to do much that in prior years had to be done by demonstrative evidence and copy companies. Most lawyers especially value the “call-out”–the on-the-fly ability to take pieces of text or image and immediately enlarge them for emphasis during witness examination or closing argument. Although highly effective, experiments have also demonstrated that there can be an unexpected downside to this process if not used carefully. When counsel obscures the underlying document with the call-out, or fails to leave the evidentiary image on the display long enough for the jurors to read it, jurors conclude that counsel are hiding adverse evidence. Lederer,Courtroom Technology: for Trial Lawyers, the Future Is Now 19-SPG Crim. Just. 14, 17 (Spring 2004).
I. Structuring the closing around the electronic presentation.
Judge Nancy Gertner of the District of Massachusetts, commented that she is particularly disappointed when PowerPoint slides are used during opening statements: “Opening statements are a time for the lawyer to be looking into their eyes. . . If a lawyer uses a slide, the jury will be looking at the slide, not at the lawyer.” Parker et al., supra, PLI Order No. 11091, at 950 & n.21. Although similar concerns have been raised with respect to the use of audiovisual displays and graphics in summation, in truth closings are an excellent time to use computer assisted exhibits because they reenforce and maximize the impact of the prior presentation.
J. Final thoughts.
Glitches must be anticipated. Power goes out; computers don’t work as expected. Paper backup is always required and any attorney must be prepared to switch presentation modes smoothly.
In crafting questions for jury selection, issues of, for example, color-blindness should be explored if these sensory perceptions are important to an appreciation of your exhibits.
Finally, a note about appeals: the reviewing court must be able to understand what happened at trial. Trial counsel must remember to preserve the record. If the use of a call-out is important, the record should reflect that one was used: “Let the record reflect that counsel has isolated the last paragraph of Defense Exhibit H, enlarged it, and circled the last line in red,” Because few if any courts have the ability to electronically capture all such annotations as they are made, counsel should be prepared to print out copies of each individual electronic image change for the record, even if the image is not offered as evidence.
1. Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5174.1 (Supp. 1998) (titling the section “The MTV Defense” and criticizing computer generated evidence as the “latest threat to justice,” ) cited in Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. Law & Tec 161, 167 & n.8 (2000).
2. Available at http://www.fjc.gov/public/pdf.nsf/lookup/CTtech00.pdf/$file/CTtech00.pdf [hereafter “Judge’s Guide”].
3. Maine’s Law Court has construed the statutory language broadly such that practically all types of claims against those employed in the healthcare field are subject to the Maine Health Security Act requirements. See Brand v. Seider, 1997 ME 176, ¶ 4, 697 A.2d 846, 847 (claim of breach of confidentiality requires Maine Health Security Act compliance). For example, the common law principles governing the duty of a physician to disclose are set out in Downer v. Veilleux, 322 A.2d 82, 89-93 (Me.1974)(adopting the majority view that failure to inform a patient of the risks involved in proposed treatment is a species of medical malpractice sounding in negligence). But since a claim based on a lack of informed consent is one for damages for injury or death against any health care provider, the statute of limitations applicable to a medical negligence action also applies to it.
4. In 1980, the Law Court decided Woolley v. Henderson, 418 A.2d 1123, which supplied the standards omitted in Downer, but which concerned a cause of action that arose before the enactment of section 2905.
5. Section 2905, however, does not apply to breast cancer claims against physicians. A physician “who is administering the primary treatment for breast cancer shall inform the patient as provided in this section, orally and in writing, about alternative efficacious methods of treatment of breast cancer, including surgical, radiological or chemotherapeutic treatments or any other generally accepted medical treatment and the advantages, disadvantages and the usual and most frequent risks of each.” 24 M.R.S.A. § 2905-A (1)(emphasis added). A patient who signs a form described in the statute is barred from bringing a civil action against the physician, based on failure to obtain informed consent, but only in regard to information pertaining to alternative forms of treatment of breast cancer and the advantages, disadvantages, and risks of each method. Id., (7). But see Vincent v. Molin, CV-00-239, 2004 WL 1925494 (Me.Super. June 23, 2004)(discussing quality of expert testimony need to prove hospital liable for failure to obtain informed consent by nursing staff).
6. Compare Evelyn Marcus, Note, The New Razzle Dazzle: Questioning the Propriety of High-Tech Audiovisual Displays in Closing Arguments, 30 Vt. L. Rev. 361 (Winter, 2006).
7. Examples of demonstrative evidence include objects or articles brought into court and exhibited to the court and jury, photographs, X-ray pictures, motion pictures, videotapes, maps, diagrams, drawings, models, fingerprints, palmprints, footprints, the exhibition of one’s person or body, experiments, demonstrations, or tests conducted either in or out of court. Parker, supra at 645 & n.10.
8. Pre-trial disclosure minimizes claims of Rule 403 danger of unfair prejudice based on unfair surprise because opposing counsel will have the necessary time to investigate all of the underlying facts and theories supporting the aids. Pre-trial disclosure does not ensure admission, as the exhibit intrinsically may be unfairly prejudicial but, “unfair surprise” will be eliminated if pre-trial disclosure has taken place. Galves, supra 13 Harv. J. Law & Tec at 200.
9. In the absence of an expert witness, plaintiffs cannot establish a claim of professional negligence against a Hospital before the panel, whether on issues of vicarious liability as to the nurses or on issues of direct corporate liability. See Hamor v. Maine Coast Memorial Hosp., 483 A.2d 718, 722 (Me.1984); Cox v. Dela Cruz, 406 A.2d 620, 622 (Me.1979). The Law Court has also construed 24 M.R.S.A. §2905(1)(A), to require expert testimony on the issue of informed consent. Foster v. Oral Surgery Associates, 2008 ME 21, 940 A.2d 1102 (where Ph.D. expert in ethics who would have testified that the consent document used by the defendants was inadequate to provide informed consent from an ethical standpoint was excluded because expert had no actual knowledge or information as to what the defendants were saying verbally about informed consent, case dismissed for lack of expert).
10. Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).
11. State v. Williams, 388 A.2d 500 (Me. 1978).