Fury Bailey - Personal Injury - Wrongful Death Attorneys

Storyboards - An Indispensable Ally in Visualizing

A Personal Injury Case

by William S. Bailey and Robert W. Bailey

At its essential core, a trial in a personal injury case is a battle between two mutually exclusive visions of reality - yours and that of your opponent. Either view is plausible enough for a jury to believe, which is why each side is willing to run the risk of a trial. The jury's verdict is the final report card on whether a lawyer has succeeded or failed in planting his/her version of reality in the juror's mind.

The Importance of Visualizing a Case

In the quest for a courtroom victory on behalf of a client, no legitimate persuasion tool can be overlooked. One of the most powerful means of influencing the jury is through visual evidence. Although four decades have passed since Melvin Belli first began to emphasize the importance of using photos, models and illustrations at trial, lawyers have barely scratched the surface of what is available to prove a case visually. Most lawyers still rely on words alone to sell their vision of reality to a jury. Graphic images and demonstrative evidence are only spliced on as an afterthought, often shortly before trial. This is too little and too late.

In a society that is increasingly visually oriented, a lawyer's ability to control the visual field of play in the courtroom is often the difference between winning and losing. In the 1990's, jurors expect a lawyer to appeal not just to their ears through words, but also to their eyes through visuals. Both are equally important. This is the same reason why advertising agencies spent enormous resources to come up with just the right combination of words and pictures to sell a product. Information is not received in a vacuum. Rather, it is filtered through the value system and common experience of the jurors. If the lawyer does not tell and show jurors why a client deserves to win, the jurors may supply a vision of reality from their own experience which:

1. Does not accurately reflect what happened in the case; and

2. Causes them to reject the plausibility of the lawyer's theory of the case.

For example, in any given personal injury case, there are several critical pivot points on which a jury's decision will turn. What really happened on the day the plaintiff was injured? How badly was the plaintiff hurt? What could the defendant have done to have avoided the injury? Was it really feasible for the defendant to take the precautions that the plaintiff sets forth in the liability case? These and many other questions are bouncing around the walls of the jurors' minds as they stare back at the lawyer silently from the jury box. A lawyer must provide verbal and visual answers to all of these questions or the client will suffer the consequences. Controlling the visual field of play is the power path to victory, increasing the odds in favor of the client.

There is a very real hazard that jurors will not "get it right" if the lawyer relies on words alone. For example, in an auto collision case at an intersection the lawyer must have not only photographs and drawings of the intersection, but also visualize what field of view was available to the parties and the events leading up to the accident. Nature abhors a vacuum and jurors will supply mental pictures of the intersection and how the accident happened from their own imagination and experiences if the lawyer does not do it for them. Juror supplied images may not favor the position of the client, which is why a lawyer should not leave visualization to chance by relying on words alone. Words are only a triggering mechanism to stimulate common experiences in the mind of the audience. They cannot describe with the precision of pictures and drawings what actually happened.

Storyboards - A New Visual Format for Trial Lawyers

As a consequence, the visualization of cases has become increasingly sophisticated and now includes day-in-the-life videos, photographs, medical illustrations, models and computer generated images, etc. However, in a personal injury case many of these visual formats show only the results of an accident. But what about the events leading up to an accident? Certainly this information plays a critical role in the presentation of a case as well. Storyboards are a relatively new tool in the area of trial practice which can effectively visualize the actual events of an accident.

In essence, storyboards are black and white or color drawings that illustrate a sequence of events. They are similar to the life-like action scenes in comic strips. The history of storyboards can be traced over sixty years to Walt Disney, who used them to plan the action sequences in cartoons prior to filming. Since that time, storyboard use has grown tremendously in the motion picture industry as a whole. Every film now made has the visual action planned on storyboards prior to actual production. In addition, every advertisement on television is first planned through storyboards by the agency responsible for it.

In trial advocacy, storyboards can be used to visualize and bring to life the testimony of the plaintiff and witnesses. The storyboard is a proven medium of planning and executing visual communication that meets a number of needs of the trial lawyer. Storyboards have the unique capability of recreating the events at issue in a way that shows the jurors why a client should win a case. The storyboard draws upon the testimony of plaintiffs, eye witnesses and expert witnesses alike to show what happened, any physical impact, the actual mechanics of the injury and how it could have been prevented by defendant's exercise of due care.

Done effectively, a modest number of storyboards tell the jury all they need to know in order to reach their decision. Through storyboards, the lawyer can isolate and visualize the factual pivot points on which a case turns. The actual seeing of an event on a storyboard is more credible and interesting to the jury than a mere verbal description of the event through trial testimony alone.

The use of storyboards, when combined with effective language that triggers the jurors' five senses, becomes a powerful tool for the effective communication with a jury. In a personal injury case, jurors can literally step into the experience of the plaintiff as though they were there. Archetypal fears such as being burned, falling, and dying, are all brought into focus. This establishes rapport between the jury and the plaintiff, anchoring the facts of the case deep within the jurors' consciousness. Their use also allows the jury to step into the accident and experience for themselves the sights, sounds, and feelings as described the plaintiff, witnesses and experts.

Evidentiary Questions - Laying the Foundation for

Admission of Storyboards

Most state courts welcome the use of demonstrative evidence of all kinds, assuming that the lawyer has done the necessary homework and laid a sufficient foundation. All demonstrative evidence must be shown to be "fair and accurate" prior to admission.

Given proper foundation, storyboards are admissible just like every other type of courtroom visual aid. Systematic pretrial preparation increases the chance of success.

It is absolutely essential that the lawyer provide the storyboard artist with all of the depositions of witnesses with any information about the event or fact that you are trying to illustrate in the storyboard. Too often, the lawyer merely summarizes things in a letter to the artist, which may or may not contain everything. If the artist takes the time to go through all of the relevant depositions, there can be no allegation that the lawyer "spoon fed selected materials to the artist." By reviewing the depositions, the artist can say that he or she has taken all relevant evidence into account.

It is also important for the lawyer to obtain all photographs taken of the scene by either police agencies, state or federal occupational safety and health agencies, worker's compensation or insurance adjusters. Check all available sources of photographs before you consult the artist. For example, in Pattison v. Harmon-McCloud Const. Co. , we found crucial photographs of the scene of a construction site just prior to plaintiff's accident in the files of the bank funding the project. A bank inspector had gone to the scene on a periodic basis and recorded construction progress in numerous pictures.

If all available sources of photographs are not satisfactory, which is often the case, the lawyer must then visit the scene of an accident with the client and take photographs of every important angle that the artist may need. It is better to be overinclusive and shoot everything.

It is also helpful for the lawyer to take a portable video camera and interview the client about the circumstances of the accident at the scene. Obviously this approach is useful only for certain types of cases, involving trauma or collision. It would not be useful in the case of medical malpractice. However, if the client is interviewed at the scene in an appropriate case, the resulting videotape can quickly impart the necessary information to the storyboard artist.

All reports and documentation, as well as interrogatory answers should also be sent to the storyboard artist. While this can be a great deal of trouble, it is necessary to laying a proper foundation. The artist should also consult with any other liability experts so that the final storyboards have the stamp of approval of all major witnesses in the case. Close communication between the artist and the other experts in the case minimizes the chance that the storyboards will be excluded from evidence through a divide and conquer strategy by the opposition.

Once the artist has all the photographs and other background materials, he/she then isolates the key units of action on either liability or damages and prepares rough sketches. The sketches are then given to the client and the experts for preliminary review, and feedback is sought as to their accuracy. Then the artist incorporates any changes and prepares a more finished product. Once again, this is reviewed by the necessary witnesses and any changes made. By adhering to this process, the final storyboards are solidly based on the available evidence and will be admissible in trial.

Storyboards prepared with the necessary foundation were admitted in Norris v. State . In that case, a motorcycle rider was injured when he struck an unmarked curb adjacent to a freeway on-ramp. The plaintiff filed an action against the State for negligent design and maintenance of the on-ramp. However, by the time the plaintiff's lawyer received the case, the on-ramp had been altered and no photographs were available. Knowing that he had to visualize the situation, the lawyer relied upon storyboards. He retained an artist to prepare drawings based on the information contributed by the witnesses. Each drawing was then identified and authenticated at trial by witnesses who gave the artist the information. It was admitted at trial and approved on appeal by the Washington Court of Appeals, which held:

The State's objection seems largely motivated by the novelty of the evidence. Novelty in an exhibit, however, does not make it inadmissible.

Case Histories - Use of Storyboards to Solve

Proof Problems

Once admissible, the storyboard can be used for a variety of proof problems. In Zeretzke v. Intalco Aluminum , the 34-year old plaintiff was electrocuted when a boom on the back of his truck made contact with power lines at a construction site. There were several problems involved in the case, including contributory negligence. The decedent was an apprentice who had been placed by his employer in a position far beyond his experience level. Unfortunately, his employer could not be sued under relevant state law.

Although Intalco Aluminum, the property owner, could have turned off the power and avoided this accident, they blamed the "empty chair", decedent's employer, for the accident. Intalco further represented that it would have crippled on-going operations at the aluminum plant to turn off the power in this particular set of overhead lines.

Through storyboards, plaintiff established how critical it was for the defendant to turn off the power, as well as how easy it would have been for defendant to do so. In this effort, plaintiff's counsel relied on two sets of five storyboards. The first set of five drawings established what actually happened on the day of the accident. The second five showed what would have happened if defendant had met its duty of care and turned off the power. One very important storyboard panel in the second set shows a man in a white hard hat throwing a switch on a control panel. This represented how easy it would have been for defendant to turn off the power. The next four drawings in the set show that if defendant had deactivated the power line, contact with the boom on decedent's truck would have been uneventful and decedent would still be alive.

The storyboards in Zeretzke v. Intalco proved why the administrative safety regulation requiring defendant to deactivate the power line was not some pointless bureaucratic obscurity as the defendant's "Reagan-like" attacks on the OSHA regulations would have the jury believe. Rather, the storyboards showed that the construction safety requirements of the state building code were a matter of life and death. It was only when the storyboards were prepared showing how easy it would have been for defendant to turn off the power that the case settled.

Storyboards also are available to corroborate the nature and extent of the plaintiff's injuries by re-enacting the power of the impact in the accident. As a threshold matter, jurors require that significant impact be shown if serious injuries are claimed. This is why insurance adjusters run out and take photographs of the cars involved in an auto accident, looking for the "crunched metal factor". If there isn't enough crunched metal on the cars to explain plaintiff's injuries, the insurance company's first line of defense is that the plaintiff must be exaggerating.

This identifies a basic principle: jurors will better understand pain if you can show them how the impact occurred. If you can visually demonstrate what happened, you can communicate an experience of pain that jurors will readily understand.

In Krein v. Nordstrom , the plaintiff, Melinda Krein, was waiting in her van for a tanker to turn off a highway. Without warning, a speeding vehicle struck the van from behind, forcing it into the back of the tanker. The plaintiff's seat belt broke from the impact and she sustained serious injuries to her neck and face.

Several years later, when the case was ready for trial, her reconstructive work was done. Melinda Krein looked fine. To see her would not elicit the sympathetic response that would have been forthcoming in the days and weeks following the accident. So the challenge was to find a way to communicate the pain and trauma she went through.

To fill this gap and allow jurors to experience the seriousness of plaintiff's injuries, storyboards were created that showed the force of the impact. Once the jurors could see what had happened to plaintiff, they had a much deeper understanding of the seriousness of the injuries. The combination of storyboards along with her words allowed jurors to experience her pain themselves.

Most lawyers incorrectly believe that medical testimony alone is sufficient to give jurors an appreciation of the plaintiff's injuries. The foundation is the accident itself. The facts of the accident provide critical evidence, which is just as powerful and just as engaging as the testimony of any doctor.

Storyboards can show impact dramatically, convincing the jurors that there is strong support for the nature and extent of plaintiff's injuries. In Pattison v. Harmon-McCloud Const. Co. , plaintiff fell off a plank going from the surrounding grade to the foundation on a construction site. He fell approximately 8-10 feet and landed on his back. The defendant's response was that this was not a serious enough fall to support plaintiff's multiplicity of injuries, even though the injury had been fully allowed as a worker's compensation claim. Once the storyboard artist recreated the mechanics of the accident, including a dramatic free fall with building material crashing down on top of the plaintiff after he hit the ground, there was no doubt that this was a traumatic accident. The case settled shortly after the storyboards took away the defendant's most promising line of attack.

Storyboards also enhance the horror inherent in a particular fact pattern far better than words alone can do. In the case of Strickler v. British Petroleum , plaintiff was burned and fractured his pelvis during an explosion and fire at a petroleum refinery. The storyboard artist was able to recreate the force of the initial blast as well as what the plaintiff looked like as his skin and clothing burned out of control. The artist was also able to demonstrate how the plaintiff's pelvis was broken after smashing into a pipe after a 30 foot fall. These drawings were the only way to show a recreation of what plaintiff actually looked like with his flesh on fire.

Conclusion

There isn't a major motion picture or television show made in the United States today that does not extensively use storyboards as a planning device. It is extraordinary that more trial lawyers have not seized upon this powerful medium before now. Done correctly with a proper foundation, storyboards present a unique opportunity to the trial lawyer to control the visual field of play and persuade the jury on the critical pivot points which are at the core of the battle between plaintiff and defendant. They are a versatile medium which can apply to liability and damages alike. Courts will admit these if they are done with the necessary foundation. In addition, storyboards help the lawyer to maximize the chances of a favorable pretrial settlement. You may never have to get to the admissibility question. In that over 90% of cases settle, and an even higher percentage of the good cases settle, storyboards can give a lawyer the needed extra power to bring a claims committee around to making a fair settlement. A versatile trial advocacy tool, storyboards are a mark of professionalism by an attorney that can make a powerful visual statement and produce results for a client.

See , Norris v. State , 46 Wn. App. 822, 733 P.2d 231 (1987).

Copyright © 2005 FuryBailey.com - Sitemap