Last week, before the Atlanta snowstorms so rudely interrupted my work week, I posted an article written by Ed Josiah from Nautilus Consulting regarding whether and how a construction lawyer can get what otherwise might appear to be a demonstrative exhibit admitted successfully into evidence.
Today, thanks to Paul McCullough at S-E-A -- another Forum sponsor -- we will walk through the issues that Mr. Josiah raised using S-E-A's capabilities shown in the video above as our example. I would like to thank Paul for giving Division 1 the right to use this video as a practical example to make the abstract more concrete.
S-E-A created this video from a point cloud. Wikipedia defines a point cloud simply as "a set of data points in some coordinate system." S-E-A uses a 3D scanner to create the point cloud you see in the video. In essence and as Paul McCullough stated to me in an e-mail, "What you are looking at is not a 3D 'model' and it is not an animation. [Instead] it is millions and millions of data points all with a relative x, y, and z location and a color. The sum total of these millions of data points [is] the point cloud." In other words, we have a three-dimensional survey of actual conditions at the project site -- not a modeled hypothesis of what someone believes exists at the project.
In identifying how to admit this point cloud into evidence and as Mr. Josiah's article stated, there are four factors to address to get this video admitted into evidence as an exhibit. These factors are:
- Witness Competence to testify about the exhibit
- Relevance of the exhibit to an issue or issues in the case
- Proper Identification of the exhibit
- Trustworthiness/Authentication of the exhibit
Let's discuss each briefly after the jump. For our discussions, we will assume that we have allegations of excessive slab deflection for a poured-in-place concrete floor.
1. Witness Competence: We are assuming that you have hired someone who will get past any challenges under Daubert for testifying about the video and about slab deflection.
2. Relevance: Is the video relevant? Based on our hypothetical allegations, the floor elevations mapped by the point cloud video are relevant to our case to determine whether the slab deflection and variation is within the construction tolerances.
3. Proper Identification: In terms of identifying this video, Mr. McCullough's e-mail statement to me is a necessary part of the description for the court to admit the video as substantive evidence. It is extremely important for the witness here to provide an explanation of how this video was created, what it represents, and why it is important to the case. In other words, you should have your expert overseeing the creation of the point map -- or doing it themselves -- so that they can state exactly how it was created and what it means.
4. Authentication: This is the most crucial step in the process. Your expert witness is very important in this scenario because they must be able to explain simply and effectively what a point map is, how it creates an actual three-dimensional representation of the conditions in the field as they exist in reality, and why this exhibit is not merely a demonstrative animation based on drawings. Once you can demonstrate to the court that this video is not just a cartoon but rather is an accurate representation of the project as it exists, admission into evidence should follow.
Everyone realizes that a good expert can make or break a case based on how well they explain what the information they reviewed shows and how it supports their own opinion. With a point map video, the expert's role now includes providing key facts in animation form and allows a fact finder to "see" the actual field conditions without ever leaving the courtroom or arbitration table.