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Continued... Page 8 > The Visualized Opening Statement

In Holman v. Mullan , the accident reconstruction expert's calculations were not challenged by the defendant's experts. They were presented in affidavit form as to the findings and conclusions for foundation purposes. This affidavit and the accident reconstructionist's deposition were submitted to the trial judge and relied upon by the filmmaker in his testimony at the pretrial hearing.

The defendant made a spirited shot-gun attack at the pretrial hearing in the area of the filmmaker's testimony. Plaintiff's counsel laid the foundation for the visibility study in some detail. The procedures under which the film was made were thoroughly discussed, including the type of camera equipment used, film speed and type, equivalency of weather and lighting conditions and special circumstances of filming under nighttime conditions. (This accident occurred at 10:00 o'clock in the evening with a dark sky.)

My opponent conducted an extended cross-examination of the filmmaker about technical limits of night photography. He also brought his own witnesses to the pretrial hearing who challenged the accuracy of the final product. These included a human factor's expert who stated that the camera in a fixed position ìseesî more detail than a human being, whose eyes and head move constantly over time. The defendant also brought in another photography expert whose position was that night photography involves manipulation in the film processing laboratory which makes it an inaccurate representation of actual lighting conditions.

The pretrial hearing on admission of the video took nearly an entire judicial day in Holman v. Mullan and was completed before the jury selection began. Having been forewarned that the pretrial hearing on this evidence would be hotly contested, the court scheduled an appropriate amount of time and allowed a complete opportunity to lay the necessary foundation. At the conclusion of the hearing, the court determined that the visibility study was accurate and permitted it to be shown in opening statement. From that point on, the case was over and the defendant knew it.

The jury saw the video in opening statement and knew through their own visual sense that the defendant should not have attempted the left turn in question prior to the collision. They saw the video on two other occasions during the trial, once during the testimony of the accident reconstruction expert and again when the filmmaker appeared before the jury to describe the process of making the visibility studies. The court also made the video and a tv monitor available to the jury for its use in deliberations. Post-trial interviews revealed that the video in opening statement did have the significant impact that all parties believed it would and assisted the jury in developing accurate perspective with their own senses on how to view the liability evidence in the case.

CONCLUSION

Given the acknowledged importance of the opening statement and the power of visual evidence, it is astonishing >>NEXT