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Total Recall

Using a Variety of Demonstrative Evidence Tools Can Help Jurors Retain Pivotal Facts and Aid in Persuasiveness

by Richard Gabriel, President, Decision Analysis

Traditionally, attorneys have been concerned with whether multimedia presentations or use of computer technology in the courtroom would create the impression of wealth. Additionally, they have been concerned that a sophisticated visual presentation would be perceived as a slick cover-up for the lack of meaningful evidence.

The overwhelming feedback from post-trial jury interviews and jury research projects has laid this myth to rest. Jurors expect graphic evidence to help them make discerning judgments about complex litigation issues. In fact, if a jury feels that a party in a case can afford it, they may be highly critical of that party if they do not devote these resources to helping them understand the substantive and legal issues in a case. However, there are so many presentation options available to trial counsel these days, it is easy to become overwhelmed and to resort to the often-used "document blowup" or to eliminate demonstrative exhibits altogether. There are a number of issues the litigator should understand to help them in their selection and use of demonstrative evidence.

Determine the key issues in the case.

When using demonstrative evidence in trial, it is important for the litigator to select which issues that they want to illustrate with demonstrative evidence. Blowup after blowup of accounting records will lose the attention of a jury almost as quickly as hours of detailed verbal testimony, unaccompanied by graphic evidence. Since visual reinforcement creates added importance for a judge or jury, it is important for counsel to select the most important issues in a witness' testimony or an opening statement to accentuate with the use of visual elements. By prioritizing these issues, the audience knows which documents or events to focus on.

Select a variety of presentation media.

As counsel works through these issues with the witness, they might think of what might visually illustrate each of those points. Traditional media for a witness' testimony include document blowups, bar graphs, pie charts, photographs, and bullet point charts. Additionally, the use of video, animations, models, and demonstrations are becoming more frequently used in trial. Since the presentation of lengthy or complex evidence makes strong demands on the attention of a judge or jury, it is important to select at least two to three different media to present different elements of the case. By varying the use of demonstrative exhibits, you capitalize on the multiple senses a fact-finder uses to process information. This ultimately aids in the fact-finder's retention of evidence. In selecting various presentation media, counsel is "storyboarding" their case by providing visual images to accompany all of the complex verbal issues in the case.

Counsel should try and determine which medium best demonstrates the point they are trying to make. A video of a convenience store taken under similar crime scene conditions might best show how a witness viewed a robbery. Product liability and construction defect cases often need animations or models to demonstrate the movement of the product or materials. Sometimes an expert simply using a white sheet of paper on a flip chart might best demonstrate the calculation of damages.

Determine a demonstrative evidence budget.

Once counsel has determined the issues they want to render visually and how they visually want to represent those issues, a budget will help to determine the final selection of presentation media. If the cause and origin of a fire is a critical issue in an arson case, but the case does not merit a huge budget, a two dimension animation might illustrate the movement of the fire at a fraction of the cost of a 3D animation. Shooting a video of the drivers' POV in a wrongful death case might effectively illustrate an expert's testimony. And a graphics software package can produce professional bar graph, pie, or bullet point summary charts. There are numerous creative and inexpensive ways to illustrate or demonstrate evidence in a case. However, complex, multiple-party litigation may justify the use of extensive database and trial presentation systems.

Organize the information in a case.

The task for trial counsel in a case that is document or witness intensive is to determine how to meaningfully organize the evidence for the judge or jury. The advent of affordable technology presents the litigator with a vast array of choices of how to present this case information at trial. While documents traditionally may have been blown up or displayed on an overhead projector, more and more trial attorneys are using document cameras (such as Elmo or Canon), presentation software (such as PowerPoint or Photoshop), and trial presentation systems (Virtual Trial, TrialPro, Trial Director) to help organize and present information to the trier-of-fact.

Document cameras present a video image of a document or photograph that is projected onto a screen or a television monitor. This system allows counsel great flexibility in the selection of documents or photographs. This allows the attorney to show the entire document or photograph or to zoom in on specific parts of the display. Most of these document cameras can also be used as an overhead projector for transparencies.

These days, with the size of computer hard drives and the ability to write to CD-ROM, the scanning and storage of documents is easier than ever. There are also numerous database software packages such as Summation or Concordance to organize and index these documents for retrieval.

Business graphics software packages are becoming more and more sophisticated and easy to use. Trial counsel or an expert witness can easily create charts and graphs to illustrate evidence points. Most of these packages also have the ability to import documents, video or audio files to accompany the charts that are created within the package.

Complex or voluminous cases can create an organizational headache for the trial team, let alone the fact finder. While database software can help to easily store and access case information for the trial team, it may not help the judge or jury to wade through a sea of documents or witnesses. These systems have the ability to load various forms of demonstrative evidence onto a hard drive or CD-ROM: documents, photographs, graphics, video, audio, and animations and code them as discreet files. Then, through a bar code system, touch screen or computer menu command, the attorney is able to call up these discreet pieces of evidence at random and play them on a television/computer monitor or projection system.

There are two other demonstrative evidence elements which will help to clarify a complex case for the fact-finder. The first is the use of summation charts. These synopsize the evidence or opinion of a witness and leave the judge or jury with an overview and roadmap of their overall testimony while emphasizing their primary points. Trial notebooks also help to organize documents for jurors and serve as a reference guide for their later deliberations. These notebooks also place the documents or photographs in question directly in the juror's hands for their close examination during trial.

Create interactive presentations to enhance retention and impact of evidence.

Television is one of the main reasons we have become so passive in our information acquisition. However, the computer industry and online services are starting to change that. CD-ROM and online game entertainment have made entertainment interactive. Interactive presentations allow the fact finder to actually participate in or experience the evidence they are hearing. This significantly increases their learning and overall retention of the presented testimony. A magnetic board with added strips can illustrate the product development process. A car in the courtroom can illustrate an exploding gas tank case. A model of a hillside can demonstrate the shifting of soils in an earthquake. A jury view made the Bundy and Rockingham crime scenes more understandable for the O.J. Simpson criminal jurors. Even the simple use of tape measure or a stopwatch can make the measurement of distance or time more vivid for a judge or jury.

With greater access and use of technology, virtual reality is taking interactive courtroom presentations to a new level. In Carolyn Stephenson v. Honda Motors Ltd. of America, No. 81067 (Cal. Sup. Ct. Placer County June 25, 1992), jurors got to view a three dimensional virtual reality film of terrain from the view of the motorcycle rider. Although cost and legal hurdles make this type of evidence rare, the future may provide the opportunity for jurors to see, hear, feel, touch, smell and taste evidence.

Carefully think through and practice with all demonstrative evidence.

Demonstrative exhibits need to illustrate, demonstrate, clarify, or simplify the evidence being presented. Too much information in a visual can serve to confuse rather than clarify. Timelines that contain every event in the case can overwhelm a judge and jury. It is also extremely important to try and anticipate how the opposing side will try and use the exhibit. The notorious "glove demonstration" in the O.J. Simpson criminal trial is an example of how one side turned a demonstrative exhibit to enormous advantage. This also points out the importance of counsel practicing with whatever system they are using. Judges and juries can get extremely impatient while trial counsel fiddles with a computer program or a VCR. When you are using technology in the courtroom, it is advisable to always have a backup system to avoid being paralyzed by a dreaded "system crash." This may mean having a duplicate computer system and a set of blowups or paper copies of the presentation to use with a document camera.

The old adages are true. "Seeing is believing." "A picture is worth a thousand words." By wisely selecting and using a variety of demonstrative evidence, trial counsel can increase the clarity and persuasiveness of their case.

 

Richard Gabriel is President of Decision Analysis, a nationwide trial consulting firm with offices in Los Angeles, San Francisco and Chicago. Richard is past President of the American Society of Trial Consultants and appears regularly on all of the major television networks as a commentator on jury issues. Contact Richard at rgabriel@decision-analysis.com or (310) 979-0999.