Demonstratives in Trial

Demonstratives in Trial

     As we know, people have their own unique learning styles.  Generally speaking there are auditory, visual and tactile learners.  This simply means that people generally learn best by either listening, seeing, or touching and experiencing.  However, although we all have a more dominant learning style, we still use these three learning mechanisms to gather and process information.  To this end, the more we as trial lawyers can use multiple mechanisms of communication, the more persuasive we can be.  Thus, when we present evidence we should attempt to incorporate more than just one medium of communication into our presentations.  Moreover, trials are long and tedious affairs.  Jurors today have shorter attention spans than ever before.  Given this fact, we need to do everything we can to make our presentation dynamic and interesting.  Thus, we need to get away from relying solely on the spoken word. 

     One of the best ways to do this is to incorporate visual aids into our presentations.  When we think about what visual aids to use we should first determine how many different issues we will present at trial.  For instance, within our cross examination of the defendant we may have several different issues alone.  Let’s say that one of the issues is proving liability and the other issue is proving a lack of credibility.  As a guideline, we could create one visual aid for each of those two issues.  In this way we can create a new and interesting visual aid for each issue in our case.  This does a couple things for us at once.  First and foremost, the visual aid creates a new form of stimulus which helps keep and maintain the interest of the jurors.  Secondly, this gives another method of persuasion as a visual aid is different and typically more persuasive than the spoken word, and third the visual aid signals and creates a new chapter heading.  If we introduce a new visual aid with each issue, which I call a chapter, the jurors can easily determine when we move from one chapter to the next chapter.  This method of presentation is easier to digest and follow for our jurors. 

     Visual aids can be presented in a variety of forms.  Anytime you can put a demonstrative in your hands or the witness’s hands as you question the witness you create greater interest in what you or the witness is saying.  If you can offer the demonstrative to the jurors to hold in their hands and pass around amongst themselves this is also highly effective and much more memorable than simply telling the jurors about a particular item of evidence.  Let the jurors hear, see, and feel evidence whenever you can.  Another highly effective way of presenting evidence is through poster board images.  Writing on a poster board or easel while you conduct direct or cross examination is highly effective.  You can write the witness’s answers down as the witness testifies.  This way the jurors hear and see the testimony, adding greater interest and persuasion.  Alternatively, you can create a list and cross items off of this list according to your witness’s testimony during examination. 

     If you are describing a situation, such as an accident, what better idea than to put up large images of the accident before the jurors on poster boards?  When the jurors can see the images you are describing they obtain a much better understanding of the scene you describe.  Perhaps you want your expert life care planner to tell the jurors about what will be required for your client going forward, following an accident.  Have your life care planner bring as many devices as he or she can carry into the courtroom.  Pass these items around for the jurors to feel, see, and touch.  Suddenly the evidence becomes much more powerful for the jurors.  If the devices are too big to bring into court then present blown up photographs of these items to your jurors.  Blow the photographs up and place them on poster board. 

     Any time you are using a visual aid on poster board make sure that your visual aid is large enough to be seen by jurors who may have poor eyesight.  You want any pictures, diagrams, or writings on poster board to be large for two reasons.  The first is that you want jurors to be able to easily see and depict what is on the board.  The second reason you want your pictures big is that you want these images to make an impact on the jurors.  The larger the picture, the larger the impression upon the jurors.  Whenever you put a picture up in front of the jurors make sure to crop out any images within the same picture which are not relevant.  As always, less is more in trial.  You always want to cut down any information from your presentation which won’t directly help the trier of fact reach a verdict in your client’s favor.  You want your jurors to immediately know what they are looking at when they see a photograph.  Jurors shouldn’t have to spend time looking over the photo in order to see what you are directing their attention to.  To this end, you should have a professional who is proficient in graphic design create these poster boards for you.  You want the pictures to be clear, organized, well framed, and titled correctly.  If you are directing the jurors to look at a certain area of a photograph but you need your jurors to see the entirety of the photo to establish context, then have your designer draw computer generated diagrams to focus the juror’s attention onto one specific area.  Have your designer highlight written words on a diagram which you want the jurors to read specifically.  Your presentation should be as professional as possible. 

     As a general proposition, anytime you are going to present a demonstrative which reinforces what you are going to tell the jury be sure to tell the jury about the evidence first, before showing the jurors the demonstrative.   If you show the jurors the demonstrative at the same time as you simultaneously tell your jurors about the subject matter then your jurors will not fully engage in what you are saying.  They will look to the diagram first to try to determine what it is you are talking about without completely listening to you.  This is why it is always best to first tell the jurors about whatever evidence or argument you may have before presenting it.  Then, after your oral presentation you bring out the demonstrative and show the jurors the very thing you were just talking about.  In this way the jurors are fully engaged in both your oral and visual presentation. 

     When you put your visual aids up around the courtroom try to leave the demonstratives there in front of the jurors for as long as possible.  When you rest with a given witness leave your poster board up in the courtroom.  Force defense counsel to remove your demonstrative from the juries’ purview.  When the defense leaves a visual aid up after they rest don’t remove the visual aid yourself.  Personally removing the demonstrative demonstrates weakness or fear to the jurors.  Instead, tell the judge, outside the presence of the jurors to have his staff remove the visual aid.  Also, throughout the trial process and leading up to trial more importantly take a good look at all of the defense exhibits and demonstratives.  Given current technology it is easy to modify images or present them in ways which are not accurate depictions.  If you notice this sort of thing, then you need to put an objection before the court in your motion in limine.  Again, you do any and all objections possible in limine so that the jurors do not see you attempting to hide evidence from their purview.  This is how the jurors see your actions when you make objections in trial, as weakness and or deceit.

     When it comes to your opponent’s demonstratives, try to use these against the defense whenever you can.  David Ball calls this “the boomerang” technique.  What you do here is essentially use any demonstrative which the defense puts up before the jurors against the defense.  So, for example, if defense counsel writes a list of items on an easel or poster board then you as plaintiff’s counsel could cross off each item from the same list while cross examining the witness whom the defense just directed.  This is a highly persuasive technique.  By the same token, be careful what you say or present to the jurors.  Think about the variety of ways the defense could make you eat your own words.  Smart defense counsel will do this every chance they get. 

     David Ball has another brilliant idea which is to bring the victim’s, plaintiff’s, family into the courtroom whenever you can.  Of course, take into consideration the appearance of these individuals.  In this way the jurors see that the case is about more than just the plaintiff.  They see that the plaintiff has a family which relies on him or her.  Bring the children into the court room during the voire dire process under the pretext of determining if any of the jurors know the plaintiff’s children or family members.  Really what you are doing is bringing in these kids for purposes of demonstrating that the plaintiff has children who depend on him or her.  This makes the consequences of the trial much more real and tragic to the jurors.      

     The information in this short article comes primarily from the teachings of David Ball.  David Ball is an exceptionally talented jury and trial consultant.  In my opinion the man is brilliant.  For a more thorough understanding of this subject matter I refer you to any of his books, which are amazing.  Additionally, he tours across the country with Don Keenan.  The two of these guys put on amazing seminars.  If you get the opportunity to attend a seminar of theirs I suggest you do so.