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University of Texas at Austin/School of Law 2005 Page Keeton Civil Litigation Conference October 27-28, 2005 CREATING AND PRESENTING PERSUASIVE DEMONSTRATIVE EVIDENCE Andy Payne Payne Law Group 2911 Turtle Creek Blvd. 14 th Floor Dallas, TX 75219 214/252-1888 email: [email protected] www.paynelawgroup.com

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Page 1: CREATING AND PRESENTING PERSUASIVE DEMONSTRATIVE EVIDENCE · Creating and Presenting Persuasi ve Demonstrative Evidence Page 2 of 18 simply more likely to believe something they

University of Texas at Austin/School of Law2005 Page Keeton Civil Litigation Conference

October 27-28, 2005

CREATING AND PRESENTINGPERSUASIVE DEMONSTRATIVE EVIDENCE

Andy Payne

Payne Law Group2911 Turtle Creek Blvd.14th FloorDallas, TX 75219

214/252-1888email: [email protected]

www.paynelawgroup.com

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ANDY PAYNE

Andy Payne is Board Certified in Personal Injury Trial Law by the Texas Board of LegalSpecialization and is Board Certified in Civil Trial Law by the National Board of TrialAdvocacy. He is the founding partner of the Payne Law Group, and a former partner with thelaw firm of Howie & Sweeney, L.L.P. He graduated third in his class from Baylor Law Schoolwhere he served as Executive Editor of the Baylor Law Review. He is a Magna Cum Laudegraduate of the Baylor Law School and a Cum Laude graduate of Texas Christian Universitywhere he received a B.B.A. in Finance. Mr. Payne is currently serving on the State Bar PatternJury Charge Committee for Medical Malpractice and Products Liability. Mr. Payne is a soughtafter products liability and personal injury expert. Currently, he is an Adjunct Professor ofproducts liability at the SMU Law School and a frequent lecturer for lawyer’s groups across thestate.

Mr. Payne’s practice is focused on product defect and aviation cases. He also routinely handlessignificant personal injury cases arising from commercial vehicle collisions. In his practice, hehandles cases involving life-changing events where millions of dollars and the client’s long-termsecurity are at stake.

Mr. Payne is a Director Emeritus of the Dallas Trial Lawyers Association. He is a Fellow of theTexas Bar Foundation, the Dallas Bar Foundation and a member of the Texas Center for LegalEthics & Professionalism. He is a Fellowship Member and on the Board of Directors for theTexas Trial Lawyers Association. He is also a member of the ATLA, the DBA, the ABA and theMac Taylor Inns of Court. He has earned Martindale-Hubbell’s highest rating (AV) through apeer review evaluation. Andy has been consecutively selected by D Magazine as one of The BestDallas Lawyers Under 40, and by Texas Monthly as a Texas Super Lawyer.Andy has successfully tried numerous cases to jury verdict in State and Federal Courts.

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CREATING AND PRESENTINGPERSUASIVE DEMONSTRATIVE EVIDENCE

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1II. WHY DEMONSTRATIVE EVIDENCE WORKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1III. WHEN TO USE DEMONSTRATIVE EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Pretrial Uses of Demonstrative Evidence . . . . . . . . . . . . . . . . . . . . . . . . . 2B. Advantages of the Early Use of Demonstrative Evidence . . . . . . . . . . . . 2C. Videotaped Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2D. Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3E. Mediations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3F. Use of Demonstrative Evidence In Trial . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Admissibility Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32. When to use demonstrative evidence during the trial. . . . . . . . . . . 4

IV. GATHERING SOURCE MATERIALS: RESOURCES AND TECHNOLOGY . . . . . . . 5A. Obtaining Source Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1. Video Interviews of Key Witnesses . . . . . . . . . . . . . . . . . . . . . . . . 52. Video Interviews of the Client . . . . . . . . . . . . . . . . . . . . . . . . . . . 53. Television News Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64. Newspaper Photographs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65. Police & Medical Examiner Photographs . . . . . . . . . . . . . . . . . . . 66. Scene Photographs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67. Family and Work Photographs . . . . . . . . . . . . . . . . . . . . . . . . . . . 68. Sympathy Cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69. Day-in-the-Life Footage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 710. Aerial Photography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711. Answering Machines and Call Notes . . . . . . . . . . . . . . . . . . . . . . . 7

12. 911 Tapes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713. Home Videos and Movies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 714. Medical Illustrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715. Stock Photography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Technology To Capture Source Materials Yourself . . . . . . . . . . . . . . . . . 81. Video Kit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82. Digital Cameras . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83. Scanners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84. Video Capture Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

V. CREATING DEMONSTRATIVE EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8A. Necessary Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Computer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9B. Necessary Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Publishing Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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2. Presentation Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103. Photo Editing Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104. Video Editing Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

VI. PRESENTING YOUR DEMONSTRATIVE EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . 10A. Presentation Hardware Essentials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. A Laptop Computer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102. LCD Projector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113. Document Cameras . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114. Audio Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125. Portable Presentation Screens . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. Presentation Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121. Presentation Software for Mediation, Opening Statement and

Closing Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132. Presentation Software for Trial and Witness Examination . . . 13

VII. TYPES OF DEMONSTRATIVE AIDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13A. Photographs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13B. Charts, Drawings and Sketches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. Witness Lineups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142. Proof Checklists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143. Summary Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141. Safer Designs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2. Anatomical Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153. Exemplar Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

D. Animations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15E. Computer Modeling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15F. Medical Illustrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16G. Videotaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1. Creative Use of Video Depositions . . . . . . . . . . . . . . . . . . . . . . . 162. Settlement Video Documentaries . . . . . . . . . . . . . . . . . . . . . . . . 163. Day-In-the-Life Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174. Things Too Big for The Courtroom . . . . . . . . . . . . . . . . . . . . . . . 175. Re-enactments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176. Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187. Witness Interviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

H. Settlement Brochures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18I. Computer Multimedia Presentations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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Creating and Presenting Persuasive Demonstrative Evidence

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Creating and Presenting Persuasive Demonstrative Evidence

Andy Payne

I. INTRODUCTION

Demonstrative evidence illuminates thesubstantive evidence and makes the issues in acase easier to understand and to follow. Today,jurors are accustomed to receiving informationin a short format with the help of visual aids.For instance, newspapers and televisionbroadcasts increasingly incorporate graphics tohelp explain stories. While I believe jurorswould have always benefitted from the use ofdemonstrative aids, today, what was oncebeneficial has now become an essential. With asociety-wide change in how information ispresented, demonstrative aids are critical tosuccess in the courtroom.

This paper briefly discusses whydemonstrative evidence works and how to get itinto evidence. But, the majority of the paperwill focus on the logistics of creating andpresenting persuasive demonstrative evidence.Technology today allows–and soon willrequire–every trial lawyer to implementeffective demonstrative evidence in theirpresentations. Showing up in a courtroom ormediation without demonstrative evidence canbe like showing up at a gun fight with a knife.Don’t do it.

II. W H Y D E M O N S T R A T I V E

EVIDENCE WORKS

Studies document why demonstrativeevidence works, but common sense tell us whyit is true–demonstrative evidence makes apresentation more interesting and memorable.Maintaining focus and attention during thereading of a long deposition or even during avideotaped deposition can be a challenge. Theuse of demonstrative evidence breathes life intoconcepts and evidence that would otherwise beunacceptably boring.

The common sense conclusion thatdemonstrative evidence makes a presentationmore memorable is supported by science.McGraw-Hill published the Weiss-McGrathstudy, which was designed to evaluateinformation retention. The study comparedretention of information presented in threedifferent formats: (1) orally only; (2) visuallyonly; and (3) visually and orally. Afterinformation was presented, information retentionwas measured at various intervals. After 72hours (the length of a short trial) the grouppresented information solely by oral meansretained only 10% of the information. The groupreceiving information solely by visually meansretained twice the information, but still only 20%of the total presented. But those who receive theinformation both orally and visually retained65% of the information presented. The studydocumented, with visual and oral presentation,individuals both retain more information initially

a ndr e tainthati n fo rm at i onforalonger

period of time.

In addition to simply making the subjectmatter more interesting, showing the jury adiagram, chart or animation lends credibility towhat is said by the lawyer or witness. Jurors are

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Creating and Presenting Persuasive Demonstrative Evidence

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simply more likely to believe something theysee with their own eyes versus that which is saidto be true by a lawyer or a witness.

Finally, demonstrative evidence canhelp synthesize the vast amounts of informationintroduced at trial. Studies show that jurors areoverwhelmed by the amount of informationpresented during a trial.1 They can becomeeasily bored, confused and frustrated. Visualaids help fight the boredom battle and givevisual cues that make following the evidencemuch easier. Demonstrative evidence isessential in helping the jurors get their armsaround the more difficult concepts. Conceptsthat if they do not understand; they will not findfor your client. Use of demonstrative aids canclarify complex issues and highlight the mostimportant evidence.

III. WHEN TO USE DEMONSTRATIVEEVIDENCE

A. Pretrial Uses of DemonstrativeEvidence

Most cases settle. Many times the bestand only opportunity to use demonstrative aidsoccurs pretrial–during videotaped depositions,hearings and mediations. Although less frequentin its occurrence, many lawyers still fail to takeadvantage of demonstrative evidence throughoutthe entire litigation process.

B. Advantages of the Early Use ofDemonstrative Evidence

Early use of demonstrative evidence hasnumerous advantages. First, the early use ofdemonstrative evidence subtly communicates toyour opponent your trial ability and yourwillingness to expend creative energy andresources on the case. Early use ofdemonstrative evidence also gives you time totest the demonstrative aids and makerefinements prior to the trial.

C. Videotaped Depositions

I always try to incorporate demonstrativeevidence in my videotaped depositions.Although too often forgotten, depositions arevideotaped so they can be played for the jury.Watching a witness testify by video deposition ismuch more boring for a juror than calling thatsame witness live in the trial. This is all the morereason to implement demonstrative evidenceduring videotaped depositions.

When using demonstrative evidence invideotaped depositions, be mindful of thelimitations associated with the video equipmentand those operating the video equipment. Thebest thought out demonstrative evidence will benothing more than a distraction if thevideographer can not fit it in the frame of theshot or worse yet the videographer keeps theframe focused just on the witness to theexclusion of the demonstrative aid. To prevent adisaster, use a professional videographer torecord your evidence. Spend the time to meetwith the videographer in advance andcommunicate exactly what you want captured onthe videotape. When recording critical testimonyusing demonstrative evidence or when using aunfamiliar videographer, consider taking anassistant to the deposition with the sole job ofwatching the video and making sure it is framedcorrectly. If it is not, stop and ask the questionsagain.

Charts, blow-ups and models work bestin videotaped depositions. They are generallyeasy for the video staff to follow. Additionally,these items get the witness out of the chair andchange the shot from that of the talking head toan interactive full body shot.

I also believe that on location depositionswork wonderfully. Witnesses can be deposed ingas processing facilities, on boats, in planesimulators or at the accident site. Deposing a keywitness or police officer at the accident scene canbe amazingly powerful. Imagine asking: “Whendid Mr. Jones began to apply the brakes?” Andhaving a officer respond: “He hit his brakes herewhere we see these skid marks.” Or in a planesimulator having your expert explain how theplane dove while the video shows the plane in a

1Roy Kreiger, Now Showing at a

Courtroom Near You , 78 A.B.A. J. 92 (Dec. 1992)

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nose dive. On-site testimony can be a powerfultool in the trial lawyer’s arsenal; don’t overlookthe opportunity to conduct an on locationdeposition.

Finally, do not forget the magic of theediting suite. In almost every videotapeddeposition, the witness is shown documents andmedical records in the form of exhibits.Amazingly, most often those exhibits are nevershown to the jury while the videotapeddeposition is played. Rather, everyone is forcedto endure the witness or lawyer reading from thedocument. If the exhibit will be admitted intoevidence, let the magic of the video editing suitespice up the testimony. I have our editors splitscreen the video and show the highlightedmedical records or exhibits from which thewitness is reading. This way the jury both seesand hears the evidence–something we knowwill dramatically increase retention.

D. Hearings

Trial Courts generally appreciate somelimited use of demonstrative aids duringhearings. I recommend consulting the benchbook or local counsel to gain an understandingof your judge’s view of demonstrative evidenceduring hearings. In most courts, be careful notto overuse demonstrative exhibits or allow thoseexhibits to slow a hearing. I find demonstrativeevidence is useful to show the judge a product,scene or mechanism not easily or brieflydescribed with words. In a lengthy hearing withmultiple issues, a summary chart or bullet pointscan be helpful to both the court and the advocatewho can use the same as a reminder or checklistof items to discuss.

E. Mediations

Short of trial, mediation is the timewhen I most often use demonstrative evidence.Many times the decision makers (insuranceadjusters and corporate counsel) are not presentto see your masterful opening statement or yourpersuasive use of demonstrative evidencethroughout the trial. Mediation gives you theopportunity to persuade the decision maker thatyour position is right and settlement should be

reached. Accordingly, demonstrative aids shouldbe an integral component of your mediationpresentation.

The use of demonstrative aids inmediation also has another powerful advantage.The advocate is not limited by the rules ofevidence. Your vision of the key events can beportrayed how you see them. You can show thevideo documentary of your clients, somethingthat you would not be able to do at the trial.Your presentation can use sounds and music thatwould never be allowed in Court. This flexibilityleads to an even better presentation.

I use a Power Point presentation atmediations. In addition to effectively presentingthe case, a Power Point presentation has atremendous secondary benefit. Creating thepresentation forces you to review the evidence,organize the key evidence in a persuasive mannerand test the weaknesses of your presentation asyou listen to the opposing perspective.

F. Use of Demonstrative Evidence InTrial

1. Admissibility Considerations

It may be cool, but can you get it to thejury? With an understanding of the basicpredicates and with an accurate reflection of theadmitted substantive evidence, demonstrativeaids are generally no problem to get before thejury.

In general, there are two types ofev i dence : subs tan t ive evidence anddemonstrative evidence. Substantive evidence isthe testimonial, documentary and real evidenceadmitted in the case. Under State and FederalEvidence Rule 401, substantive evidence isgenerally admissible if it makes a fact ofconsequence more or less probable than it wouldotherwise be. Unlike substantive evidence,demonstrative evidence does not make a factmore or less probable, but is used to explain or toillustrate the substantive evidence admitted in thecase. Courts have defined demonstrativeevidence as that evidence “admitted solely tohelp the witness explain his or her testimony”that the exhibit has “no probative force beyond

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that which is lent to it by the credibility of thewitness whose testimony it is used to explain.”Carson v. Polley, 689 F.2d 562,579 (5th Cir.1982).

Demonstrative evidence is generallyadmissible if it is shown to be relevant, shownto assist a witness in explaining his or hertestimony, and its probative value outweighs itsprejudicial effect.2 Thus, the foundationalelements for demonstrative evidence require: (1)that the demonstrative evidence relate to a pieceof admissible substantive evidence; (2) that thedemonstrative evidence fairly and accuratelyreflect the substantive evidence; and (3) that thedemonstrative proof aids the trier of fact inunderstanding or evaluating the substantiveevidence.3 A trial judge is given broaddiscretion in determining whether to admit or toreject demonstrative evidence and the judge’sruling will only be overturned when there is aclear abuse of discretion.4

I find that demonstrative aids are mostoften welcomed by a court. However, inintroducing demonstrative evidence, always beprepared to have a sponsoring witness say thatthe demonstrative aids fairly and accuratelyrepresent some substantive evidence, i.e. theaccident site and that the demonstrativeevidence will help explain his or her testimonyto the jury.

Finally, the most common objectionsuccessful in excluding demonstrative evidenceis a 403 objection that the prejudicial effect ofthe demonstrative exhibits outweighs its

probative value. Given that the probative valueof demonstrative aids is generally weak to non-existent, be careful to avoid particularlyprejudicial demonstrative exhibits and beprepared to meet a typical 403 objection.

2. When to use demonstrative evidence

during the trial.

I try to use demonstrative evidenceduring all stages of the trial. First, consider usingdemonstrative evidence during your openingstatement. Generally, the use of demonstrativeevidence during an opening statement requirescooperation from the Court and opposingcounsel. Recall that demonstrative evidence isused to illustrate or to explain substantiveevidence. During the opening statement, therewill be no substantive evidence admitted andtherefore the use of demonstrative evidence willhave to be with the agreement of court andcounsel. Nevertheless, demonstrative evidencecan be a powerful tool to reinforce your themesand visually organize the evidence that will bepresented to the jury over the coming weeks.

Use demonstrative aids with almostevery witness called. As a general rule, I like touse at least one demonstrative aid with each factwitnesses. Obviously, this is not a hard and fastrule. I do not recommend creating a uselessdemonstrative aid just for the sake of doing so.However, liability fact witnesses generally lendthemselves to the use of charts and diagrams toexplain the products and the accident scenesinvolved.

While the general rule is at least onedemonstrative aid per fact witness, I generallyuse three to four demonstrative aids whenexamining experts. We are involved in manyproduct liability cases. I like to bring the productitself, a model, video recreation, and/or ananimation for my expert to narrate. This givesmy expert an opportunity to get off the witnessstand and get his hands on the actual evidence. Iwill often have damage experts use anatomicalmodels, surgical instruments and medicalillustrations in presenting their testimony. Again,the idea is to have these experts get out of thewitness box and teach the jury on a moreinformal basis.

2 See FED . R. EVID . 403; TEX. R. CIV. EVID .

403 ; Ford Motor Co. v. Miles, 967 S.W.2d 377, 389

(Tex. 1998).

3 Robert D . Brain and Daniel J. Broder, Inc.,

Demonstrative Evidence: Clarifying Its Role at T rial,

Trial, Sept. 1994, at 74; The Derivative Relevance of

Demonstrative Exhibits: Charting Its Proper

Evidentiary Status, 25 U.C. Davis L. Rev., 957, 968

(1992).

4 See Goff v. Continental Oil Co., 678 F.2d

593, 596 (5th Cir. 1982)

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The use of demonstrative evidence in

closing arguments is an absolute essential. Inmaking closing arguments, I always argue thecharge. Use the Elmo, blow-ups, or Power Pointpresentations to present and to highlight keyinstructions and definitions from the Court. Ioften use a red marker or Power Pointpresentation to tell the jury exactly how I wantthem to answer the charge. Demonstrative aidsused throughout the trial can be reused duringclosing argument to reinforce themes andimportant points. Many times I use witnesssummary boards during closing arguments tohighlight key testimony. These witnesssummary boards can easily be made on a PowerPoint presentation. I include the witnesses nameand title, a video still or digital picture taken atthe Courthouse and the exact trial testimonyused. I also find that the use of demonstrativeaids in opening and closing arguments providesme with cheat sheets so that I may argue thecase with little or no dependence on notes. Mynext slide in essence serves as my cues for thenext portion of my argument.

Using demonstrative aids in both thepretrial negotiations and throughout the trial canilluminate the substantive evidence and thecritical issues in the case.

IV. G A T H E R I N G S O U R C EMATERIALS: RESOURCES ANDTECHNOLOGY

The obvious starting place for thecreation of persuasive demonstrative exhibits isgathering the underlying source of materials.This portion of the paper suggests some areas toexplore for source materials. Secondly, thissection addresses some of the basictechnological equipment you will need tocapture this source material yourself.

A. Obtaining Source Materials

Obviously, the demonstrative evidencethat ends up being used at trial will have itsfoundation in the substantive evidenceuncovered through the normal discoveryprocesses, (Requests for Product ion,Interrogatories, Request for Disclosure,

Depositions, etc.) but there are often overlookedsources that may be helpful in creatingdemonstrative aids for use in pretrial mediationor settlement discussions. I routinely considerthe following sources for pretrial demonstrativeaids:

1. Video Interviews of Key Witnesses

Videotaped statements of key witnesseswill generally not be admissible at trial.Nevertheless, I find these interviews to beinvaluable. As a Plaintiff’s lawyer, I generallyhave the opportunity to interview all the keywitnesses, obtain videotaped statements, and pinwitnesses to specific positions before I ever filethe lawsuit. While the statements themselves aregenerally not admissible, once I have them onvideo their depositions are almost alwaysconsistent with their previous statements. Shouldthey deviate, I could use their prior statement forimpeachment purposes. In addition to theobvious benefits of obtaining these statements, Ifind that doing so is rather disheartening to myopponents. Once they begin their investigation,they are generally shocked to learn that all of thekey witnesses in the case have given me a videostatement supporting my position. Using editedvideo interviews of these witness statementsduring mediation has met with great success.

2. Video Interviews of the Client

I generally conduct video interviews ofmy client for use in settlement negotiations,settlement videos, and mediation. Thesevideotapes are unlikely to ever come before thejury, but they can be enormously persuasive ineducating decision makers on the likeability ofyour client. Videotaped client interviews givethe decision makers a glimpse of how yourclients will be perceived by the jury. Videotapedinterviews of the clients can be powerful,emotional catalysts to a settlement. Theseinterviews put a name and face with the decisionmaker’s file.

Although it has never been raised in oneof my cases, be careful to only videotapediscussions that you would be comfortableproviding to the other side. An argumentcertainly could be made that this process was not

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done with the intent of communicating legaladvice and should not be afforded protectionunder the attorney/client privilege. While I dobelieve that good arguments exist both ways, thesafe practice is simple to limit videotaping tothose items which you are comfortableproviding to the other side.

3. Television News Coverage

At times a case you may be handlingwill be television newsworthy. Many majoraccidents are captured by television news crewsand their news helicopters. Obviously, the rawpictures themselves may be, and likely will be,evidence that is admissible in trial. Alwaysobtain these photos. They are generally ofprofessional quality and are taken with an eyetowards evoking emotion. I have also found,that the corresponding sensational comments bynewscasters often lends credibility to theseverity of the incident. The subtle message isthat if this collision is an item worthy of the fiveo’clock news, the decision makers should alsogive it serious consideration.

4. Newspaper Photographs

I have found newspaper photographsinvaluable in a number of cases. Thesephotographs are often scene photographs thatwill be useful both in the pretrial and trialphases. I have found newspaper photographsparticularly fruitful with the smaller townweekly papers. Inevitably, if there is any wreckwithin the jurisdiction of a small townnewspaper, they will send their photographer. Ifyou are lucky, they may have even interviewedsome witnesses and provide you with some earlyleads. I routinely check the local newspaperswhere my incident has occurred to determinewhether there is any newspaper coverage.

5. Pol ice & Medical ExaminerPhotographs

Most of us already appreciate thatpolice officers and medical examiners takephotographs in most major accidents. However,I am always surprised to learn how many timeslawyers stop at ordering just a copy of the policereport. Make it a practice to subpoena the entire

police officer’s file, including notes, calculations,photographs, statements and other materials usedto compile the police report. Most often thepolice officer’s photographs are the best scenephotographs available. 6. Scene Photographs

We do quite a bit of automotive productliability cases. In these cases, documentation ofthe condition of the scene is critical.Immediately upon being hired in a case, we sendan investigator to document the scene where theincident occurred. The photographs shoulddocument all evidence left on the roadway–skidmarks, yaw marks, gouge marks, and debrispatterns. Likewise, the fields should bephotographed to show the location of burrows,gouges, and debris. The point of rest of thevehicle should always be documented. Look forsigns of medical attention being provided. EMSoften leave tools of their trade at the locationwhere the victim is found. These photographstogether with police and news photographsshould give you good scene photographs for useat trial.

7. Family and Work Photographs

When we are hired to represent a family,one of the first tasks we undertake is to gather allfamily photographs and work photographs to usein settlement presentations, settlement brochures,and collages for use at trials. While it may bedifficult to describe a relationship between afather and a son, a photograph of a fathercarrying his son on his shoulders and the smilethey both have can communicate more than askilled advocate could ever do with words.

8. Sympathy Cards

We routinely ask to review any sympathycards that the family has received. Many timesthese cards contain heartfelt words of what yourclient may have meant to others in his or herlifetime. These sympathy cards can provide

leads to powerful potential witnesses and makeoutstanding demonstrative aids.

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9. Day-in-the-Life Footage

If your client has a debilitatinginjury, obtaining footage of their dailyroutine can be an invaluable tool tocommunicate the true difficulties associatedwith the incident. A day-in-the-life video,which is accurate and not overly prejudicial,will many times be allowed into evidencewith a life-care planner or physical medicineand rehabilitation doctor narrating. Moreoften, day-in-the-life videos demonstrate todecision makers the truly life changingnature associated with the incident.

10. Aerial Photography

Aerial Photography is enormouslyhelpful in many personal injury cases. Anaerial shot of the scene can be used as realevidence in the case. Many times I willobtain an aerial shot of the scene,intersection or roadway involved. We willthen use this aerial photograph throughoutthe pretrial process as deponents describehow the incident occurred by actuallymarking on the aerial photograph itself.Aerial photography can be obtained at afairly modest price. Moreover, aerialsatellite photographs are available on theinternet for free at www.terraserver.com,w w w . g l o b a l e x p l o r e r . c o m , a n dwww.earth.google.com. These websites canprovide satellite photographs with surprisingdetail. These photographs can then be usedin mediation presentations or trial easily andinexpensively.

11. Answering Machines and Call Notes

Ask your clients if they have savedany voice messages from victims. You canusually incorporate these into a powerful

message for use during settlementnegotiations.

12. 911 Tapes

Obtain the 911 Call Logs. These logswill often identify witnesses who saw theincident but did not stop to be interviewed bythe police. Further, these tapes will oftenprovide dramatic and emotional descriptionsof the incidents. These are generallyadmissible as excited utterances under anexception to the hearsay rule and make awonderful addition to a settlementpresentation.

13. Home Videos and Movies

Like family photographs, homevideos and movies truly capture familyrelationships that are either lost orinadequately described with words alone.Always obtain copies of home movies andvideos for use in your settlementpresentations.

14. Medical Illustrations

We have all seen anatomically correctmedical illustrations. While a medicalillustration tailored to your case can beexpensive, many times the medicalillustration is a powerful demonstrative aidduring the direct examination of a physician. When a customized medical illustration doesnot make sense, generic medical illustrationscan be used by simply downloading medicalillustrations off websites. The followingwebsites provide such generic illustrations: www.adam.com;www.lifeart.com;www.nlm.nih.gov and,www.wmagraphics.com/med.html

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15. Stock Photography

Sometimes you may not have time toobtain the perfect photograph for your case.In the pretrial context you may want toconsider using stock photography for avisually appealing filler. The followinginternet sites provide stock photography:

w w w . f r e e s t o c k p h o t o s . c o m ;www.comstock.com ; www.corbis.com ;and www.eyewire.com .

B. Technology To Capture SourceMaterials Yourself

Most demonstrative aids that youwill use in the pretrial and trial arenas can becaptured using basic technology that isavailable to all attorneys. The following is alist of the basic equipment you will need tocapture the source materials necessary forthe creation of persuasive demonstrativeaids.

1. Video Kit

Our firm has invested in a handful ofsimple video kits. These video kits includeeverything we need to do basic interviews orscene documentation. Your kit shouldinclude a digital camcorder, a digital camera,camera lights, power supplies (batteries,back-up batteries and power cords), blanktapes, a tripod and lapel microphones. Weroutinely use these video kits to documentscenes, conduct video surveillance,interview witnesses and interview clients.

2. Digital Cameras

A digital camera is a cheap and easyway to capture demonstrative evidence.

Digital cameras can transfer digital filesdirectly into Power Point presentations foruse at mediation and trial. As stated above,we have a digital camera in each of our videokits to document scenes, vehicles or othercritical evidence. Good digital cameras canbe obtained for between $300 - $1,000.

3. Scanners

Unfortunately, most documents andphotographs that you encounter will not be ina digital format. Invest in a good scanner tocapture family photographs, sympathy cardsand other source materials. Scanners can bepurchased for between $200 - $500 at anycomputer store.

4. Video Capture Equipment

Like scanners that transformphotographs and documents into a digitalformat, video capture cards transform VHSvideos into a digital format. This allows theuser to manipulate and to edit the videowithin the computer.

Using the basic technology outlinedabove, you can capture evidence, which willbe later used in the creation of persuasivedemonstrative evidence.

V. CREATING DEMONSTRATIVEEVIDENCE

Today, the majority of demonstrativeevidence can be created with nothing morethan a home computer, a high quality colorprinter and basic software packages. In thisportion of the paper, I will describe theequipment and software necessary to createyour own demonstrative exhibits. With just

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these basics, the majority of yourdemonstrative aids can be easily andinexpensively created.

A. Necessary Equipment

1. Computer

I recommend purchasing a laptopcomputer. Today’s laptop computers havethe necessary processing power to run theprograms needed to make demonstrativeaids. Additionally, a laptop computer hasadvantages over a desktop in that the laptopcan be taken on the road and used to presentyour demonstrative evidence at seminars,mediations and/or trial.

If you are considering the purchaseof a laptop computer, I would recommendthe following minimums. (1) The operatingsystem should be Windows XP. (2) Theprocessor should be at least a Pentium 3,850 megaher tz processor . Myrecommendation is to buy the most powerfulprocessor available. Not only are morepowerful processors necessary to run thedemonstrative creation and presentationprograms, but they are necessary tosmoothly play videos downloaded onto yourlaptop. (3) I would recommend at least a 30gigabyte hard drive. Having the largest harddrive available allows you to storephotographs, videos and images that will beused in your demonstrative aids. All ofthese items take up considerable hard drivespace. Accordingly, it is best to have anabundance of hard drive capacity. (4)Finally, your computer should have a DVDPlayer. DVD is quickly becoming thedominant media format. The introduction ofDVD burners now allows lawyers to burn 2½ hours of video onto a single DVD. Alaptop equipped with a DVD player can play

the video and access other images from aDVD.

My recommendation for laptopmanufacturers are Dell Computers atwww.dell.com; Sony Vaio Computers atwww.sonystyle.com/vaio/notebooks or IBMThinkpads at www.IBM.com.

B. Necessary Software

1. Publishing Software

Publishing Software is used to createprinted brochures and boards. The desk toppublishing software I recommend isMicrosoft Publisher, which can be purchasedat www.microsoft.com/office/publisher/. Theprice of this software is $339.00. We useMicrosoft Publisher to create settlementbrochures. The key documents, medicalrecords, photographs of the scene, andphotographs of the injuries can easily beimported and narrated in a colorful andpowerful manner. These demonstrative aidsare easily created in the desk top publishingprogram. Once you have a format for doingso, the settlement brochures can becustomized for different cases with relativeease.

A second use of desk top publishingsoftware is the creation of single pageexhibits either to be shown with the Elmo,overhead projector, or on foam core boards.You can create the exhibits you wish in theseprograms and e-mail them to companies toprint enlarged versions on boards.

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2. Presentation Software

Presentation Software is similar topublication software in that images,documents, and photographs can beorganized on separate pages called slides.Additionally, the presentation systems allowthe user to play video excerpts directly fromthe presentation software. Presentationsoftware is include in this portion of thepaper because the software is useful increating and in formatting the demonstrativeaids in addition to presenting them throughan LCD projector or otherwise. Thepresentation software that I recommend isMicrosoft Power Point which can bep u r c h a s e d a twww.microsoft.com/office/powerpoint orCorel Presentations which can be purchasedat www.corel.com. Both programs costapproximately $400.

3. Photo Editing Software

Photo editing software allowsphotographs to be edited and polished forlater use in a presentation or publicationcreated in Microsoft Publisher or PowerPoint. I have used photo editing software tocrop unwanted images and clarify andbrighten others. The very best photo editingsoftware is Adobe Photoshop which can bepurchased at www.adobe.com for $609.00.

4. Video Editing Software

I personally do not edit my ownvideos. I think this is an area that takessome time and is better and moreprofessionally conducted by a professionaleditor. Nonetheless, simple video editingcan easily and inexpensively beaccomplished on a case that does not justify

outsourcing these items. The best videoediting software is Adobe Premiere Softwarewhich can be purchased at www.adobe.comfor $549.00.

Adobe Premiere is a highlysophisticated video editing platform thatcontains a vast number of features most ofwhich would go unused by the layman editor.Today, many digital camcorders and laptopscome with video editing software included.Likewise, video capture cards that transferVHS video to a digital format will includebasic editing software. Most of this softwareis very inexpensive and should satisfy thebasic editing needs of the legal profession.

VI. P R E S E N T I N G Y O U RDEMONSTRATIVE EVIDENCE

Presentation of your demonstrativeevidence can be accomplished by use ofseveral different mediums. The presentationof demonstrative exhibits in traditionalformats (such as charts, graphs and blow-ups)is well known by most practitioners.Accordingly, this portion of the paper willfocus upon presentation of demonstrativeexhibits using technology.

A. Presentation Hardware Essentials

With very basic hardware,demonstrative evidence can be inexpensivelypresented at mediation and trial. Thefollowing are essential hardware items to addto your equipment presentation inventory.

1. Laptop Computer

As previously discussed in SectionV.A.1., of this paper, a laptop computer is the

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centerpiece of the hardware used inpresenting demonstrative evidence. Myrecommendations for laptops were presentedearlier in this paper and will not be repeatedhere.

2. LCD Projector

LCD Projectors allow the presenterto show computer-generated demonstrativeevidence, Power Point presentations, playvideo from a VCR and show documents. Inessence, a LCD projector acts like atelevision or monitor that allows multipleinputs from a VCR, document camera andyour computer. The LCD projector provideshigh quality images on a large screen evenunder lighted conditions.

In considering an LCD projector, it isimportant for the projector to have at least1,000 lumens. This represents theprojector’s ability to project bright images.The more lumens, the brighter the images. Itis also important to confirm that the LCDprojector you are considering has thecapability for multiple inputs and an easyswitching mechanism. This is important sothat you can run a cable from your VCR,your ELMO and your computer directly tothe LCD projector. The projector switchingdevice should allow you to easily switchback and forth from these different sourcesfor presentation of your demonstrativeevidence.

LCD projectors are priced between$2,000 - $6,000. I recommend the EpsonPowerLite Series priced from $2,204. Moreinformation regarding these LCD projectorscan be obtained at www.epson.com. Infocusalso has a very good line of LCD projectorsfrom $1,999. More information about theseLCD projectors can be obtained at

www.infocus.com. Finally, my firm uses anNEC Series projector which has worked quitewell. These projectors start at $2,220. Moreinformation regarding these projectors can beobtained at www.nec.pj.com.

I would like to provide some finalthoughts regarding LCD projectors. Considerpurchasing a back-up projector, particularly ifyou plan to use the projector in theCourtroom. Likewise, it is important to havereplacement bulbs on hand. It wouldcertainly be an unenviable position to be outof town at trial with a computer full ofwonderful demonstrative evidence but noability to show the jury your work becausethe LCD projector light bulb was out. Asalways, plan in advance for the worse andhave appropriate back-up systems available.

3. Document Cameras

I believe that most practitioners arebecoming more and more familiar withdocument cameras. Many of the larger citieshave court-owned document camerasavailable for use. Dallas County’s ABOTAChapter purchased document cameras and bigscreen T.V.s for all of Dallas’ Civilcourtrooms. This provides an invaluableresource for use by lawyers in all cases largeand small. While document cameras may beavailable in some courtrooms, the vastmajority of courtrooms still do not havedocument cameras available to litigants.

I would highly recommendpurchasing a document camera to use duringtrial. Document cameras are essentially fancyoverhead projectors. The document cameraswork by suspending an actual video cameraonto an arm above the surface of themachine. Documents are then placed on thesurface of the machine. The camera can be

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zoomed and focused in on certain portionsof documents. The video captured is thenoutput to a T.V. or a LCD projector therebydisplaying the document, photograph orthree dimensional object for the jury to view.Document cameras are excellent tools forshowing exhibits, the charge, photographs,and even three dimensional exhibits. Onceyou have used a document camera to cross-examine witnesses with exhibits, you willtruly appreciate its value.

In purchasing a document camera,consider the following important features.First, consider a document camera with aback light for displaying x-rays. Second,your document camera should containmultiple inputs as with the LCD projector.Any document camera purchased by youshould absolutely have zoom and auto focusfeatures. These features are enormouslyimportant in highlighting certain items indocuments without the necessity ofrefocusing each time.

Document cameras are available forpurchase from between $1,000 - $7,000.While the initial cost may be significant, thiscritical presentation tool can be used overand over again without additional expense.There are two primary manufacturers ofdocument cameras. Elmo manufacturers adocument camera priced from $1,750.Additional information regarding Elmos canbe obtained at www.elmo.com. A seconddocument camera company is DoarPresentations. These document camerasrange from $1,049 to $7,099. Additionalinformation regarding Doar presenters canbe obtained at www.doar.com.

4. Audio Systems

An often overlooked aspect of thepresentation system is a powerful audiosystem. The LCD projector or computerspeakers are wholly inadequate to powerfullycommunicate sound to juries. Audio systemswhich will amplify computer output soundswith subwoofers and multiple speakers arewell worth the money. Most of these systemscan be purchased from between $200 - $500at Best Buy or CompUSA.

5. Portable Presentation Screens

Another needed, but overlooked itemis a portable presentation screen. Apresentation screen is necessary for use withan LCD projector. Presentation screens arenow well designed so that they can be easilyexpanded for use and easily stowed away. Irecommend the Da-Lite 4 Model C, 72" by96" which is priced at $665.00. Moreinformation regarding presentation screenscan be obtained at www.da-lite.com.

B. Presentation Software

Once equipped with the basichardware, you will need presentationsoftware to effectively present your exhibitsand demonstrative aids during mediation andtrial. There are numerous software packagesavailable. I use a combination ofpresentation software in cases that I handle.Some software is better for use duringmediation, opening statements and closingarguments. Other software is better forpresentation of exhibits and for use duringexamination of witnesses.

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1. Presentation Software for Mediation,Opening Statement and ClosingArguments

Some presentation software isdesigned to present slides. Thesepresentation systems work very well duringmediation, opening statements and closingarguments. Both of the recommendedpresentation systems allow you toincorporate video, photographs, still imagesand to type your own text. Mostimportantly, these features are very easy touse and to implement with little or notraining. My recommendations for thesetypes of presentation systems are MicrosoftPower Point priced at $339.00. MicrosoftPower Point can be purchased atwww.microsoft.com/office/powerpoint/ orCorel Presentation which can be purchasefor $339.00 at www.corel.com.

2. Presentation Software for Trial andWitness Examination

The Power Point and Corelpresentation systems discussed above workexcellent in preplanned scenarios. However,we as trial lawyers, know that the trialprocess is dynamic. Often times anexamination of a witness can changeinstantaneously. Power Point and Corelpresentations do not allow the flexibility toadjust to these quick changes. Accordingly,it is necessary to use another trialpresentation software to display exhibitsduring the trial.

The trial presentation software Irecommend allow exhibits to be scannedinto the computer prior to trial. Each exhibitis assigned an exhibit number and bar code.These bar codes can be printed out onstickers to be placed in your witness notes or

trial notebook. Further, these bar codes canbe placed in your exhibit book. From any ofthese locations, a bar code scanner caninstantaneously pull up an exhibit by simplyscanning the bar code or by typing in theexhibit number on a key pad. Once thedocument is displayed through thepresentation system, the lawyer can highlightand zoom in on important portions of theexhibit. Unlike a Power Point presentation,you are not limited in going to just the nextslide. These systems allow you to skiparound to different exhibits.

Further, these trial presentationsoftware packages allow you to play videosand show images. The limitations of the trialpresentation software are that you cannoteasily add text to boxes and backgrounds, noruse design templates or animation. For thisreason, Power Point and Corel presentationsmakes a more appealing presentation, butthey lack flexibility needed for witnessexaminations.

The two trial presentation systems Irecommend are Sanction Trial Presentationsoftware priced at $395.00. The SanctionS o f t w a r e c a n b e p u r c h as e d a twww.verdictsystems.com/sanction.html Thesecond trial presentation system I recommendis In Data’s Trial Director priced at $595.00.This software package can be purchased atwww.indatacorp.com/software/default.asp.

VII. TYPES OF DEMONSTRATIVEAIDS

A. Photographs

Photographs still remain as the mostused form of demonstrative evidence. As

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discussed in the previous portions of thepaper, these photographs can be obtainedfrom the police department, fire department,newspapers, television stations, and medicalexaminer offices. In order to introduce aphotograph into evidence, you need asponsoring witness who is familiar with theobject or scene depicted and can testify thatthe photograph is a “fair” and “accurate”representation of the scene or item inquestion.

B. Charts, Drawings and Sketches

Second to photographs, the mostused demonstrative aids are those existing incharts, drawings and sketches. Charts,drawings and sketches can be used tohighlight particularly important items or as asupplement to a computer presentation. Thefollowing are examples of commonly usedcharts and boards:

1. Witness Lineups

In a complicated case with manywitnesses, I often use a witness lineup chartthat simply contains a photograph of thewitness, the witness’ name, and a genericdescription of the witness’ relation to thecase. This has proved to be immenselyhelpful for juries in keeping the players in acase straight in their minds.

2. Proof Checklists

I have seen different lawyers useproof checklists in a variety of ways that areenormously effective. One way to use aproof checklist is to list, in your openingstatement, certain facts that will be proved.A board with these proof items can beintroduced during the opening statement. As

the proof comes in during the trial, a visiblecheck mark can be placed next to the proofitem so that the jury mentally will understandand believe these items have been proven. Atthe end of the case, the proof check list canbe used as a format or discussion point in theclosing argument.

3. Summary Boards

Summary boards can be used withcharts, drawings, sketches, or through amulti-media presentation. Basically, asummary board includes a picture of awitness, his or her name and the key items towhich he testified. In a lengthy case,summary boards can be important tools toremind the jury of the key witnesses and theircritical testimony.

4. Miscellaneous

The uses of charts, drawings andsketches are limited only by the evidence andthe imagination of the lawyer. We are allaware of charts, drawings and sketches usedto depict accident scenes, witness testimonyand other important concepts in a case.Spend time thinking about the evidence andexpand your demonstrative evidence beyondthe ordinary.

C. Models

One the most effective demonstrativeaids is models. Models have what most otherdemonstrative aids lack – a third dimension.The following are models that we frequentlyuse in our trials:

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1. Safer Designs

Daubert now requires that expertsmany times build and test safer alternativedesigns. In our product liability cases, wewill commission engineers to not onlydesign but to build prototype saferalternative designs that eliminate thedangerous defect we allege exists. There isalmost no more powerful tool than havingyour expert show a product that safely andeffectively can be built to address aparticular issue. Obviously, buildingprototype safer alternative designs is notpractical in some cases, but when it isfeasible they can be enormously effectivedemonstrative tools.

2. Anatomical Models

Anatomical medical models arereadily available through many differentproviders. Lawyers and Judges PublishingCompany provides countless models, as doother suppliers. Anatomical models aretremendously helpful in videotaped doctordepositions and doctor direct examinations. Using model bones and muscles to showmechanism and extent of injury is apowerful demonstrative tool.

3. Exemplar Products

If the size and space of theCourtroom permits, an exemplar product canbe used to show concepts in a case. Havingyour expert work with the product in thecourtroom lends great credibility to histestimony and makes the communicationmuch more effective.

D. Animations

Animation is the cutting edge indemonstrative evidence. Animations aresimply invaluable. Animation provides athree dimensional perspective and can bepresented without limitations associated withreal life. Animations can capture and showitems that do not lend themselves to otherdemonstrative aids. For instance, a object toosmall or too difficult to see can be easilyanimated. I have used animations to showthe innerworkings of products. My medicalmalpractice colleagues have used animationsto show how various organs function withinthe body. Conversely, animations can showevents occurring on a larger scale that couldnot be duplicated with the use of otherdemonstrative aids. The innerworkings of agas processing plant cannot easily be shownthrough a series of photographs, but caneasily be brought to life in animation.Animations created under the supervision ofan accident reconstructionist or otherqualified expert, can be used to show fair andaccurate representations of how collisionsoccurred. Actually seeing the timing,position and movements of vehicles throughan accident scene and collision goes beyondpainting a picture with words, but actuallyshows the jury the accident sequence itself.Think about using animations to illuminatecritical evidence in your case or when otherdemonstrative aids fall short.

E. Computer Modeling

Computer modeling is a way to satisfymany of the prerequisites associated withDaubert challenges in the absence ofexpensive testing. For instance, in rollovercases, we hire experts who use computermodeling to test proposed safer alternativedesigns. This computer modeling cancheaply and accurately test our safer

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alternative design. In fact, Ford MotorCompany uses a computer modelingprogram called A.D.A.M.S. This programallows Ford to change various componentson the vehicle and test those changes withtheir A.D.A.M.S. computer model to seehow various changes affect rolloverpropensity. We can use this sametechnology to test our experts’ saferalternative designs.

While the use of computer modelingis important substantive evidence, it has thecorresponding effect of creating powerfuldemonstrative evidence. The dataassociated with computer modeling caneasily be transferred to a computer animatorwho can then animate the various modelscreated by your experts.

F. Medical Illustrations

Medical Illustrations are really aform of board or chart. Medical illustrationscan generically illustrate anatomy orinjuries. Stock medical illustrations arereadily available in publications and off theinternet. See Section V.A.14. of this paperfor additional information on obtaininggeneric medical illustrations.

In addition to generic medicalillustrations, there are professional medicalillustrators who can customize illustrationsto the facts and injuries that exist in yourcase. These customized medicalillustrations, with the supervision of medicalexperts, can be valuable tools for an expertexplaining injuries to a jury. I like usingmedical illustrations that compare normalanatomy with the injured anatomy througheither side-by-side comparisons or plasticoverlays. I find this particularly useful andimportant when the injury is difficult to

understand. Showing the jury a normalanatomical position versus the victim’sanatomy can effectively demonstrate theinjury. Whether generic or customized,medical il lustrations are powerfuldemonstrative aids in personal injury cases.

G. Videotaping

Videotaping events, witnesses,products and scenes is a mainstay ofdemonstrative aids. The following are mythoughts on videotaped demonstrativeevidence.

1. Creative Use of Video Depositions

In the past few years, I have tried tochange my videotaped depositions toincorporate graphics and exhibits. A skilledvideo editor can literally take an exhibitdiscussed with a witness, highlight theimportant information and show that visuallyas the witness’ voice is overlayed or a splitscreen is used to show both the witness andthe document at issue. This allows for boththe oral presentation and the visualpresentation of information, which results ina significantly higher retention level.Additionally, using videotaped depositions inthis format makes them much moreinteresting to a juror.

2. Settlement Video Documentaries

Settlement video documentaries areextremely important. One of the mostdifficult things to communicate to decisionmakers are the likeability of your clients. Itruly believe what others have said, “Yourclient is your case.” If the jury does not likeyour client they generally will not like your

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case. This most important aspect is bestcommunicated to decision makers by use ofa settlement video documentary. Our firmroutinely does video interviews with ourclients. We couple these interviews withhome movies, photographs, interviews withfriends and witnesses to produce videosettlement documentaries. In producingsettlement video documentaries, I typicallydo not address liability. It is my belief that Ican cover liability issues more effectivelythrough a multimedia presentation at themediation. I use the video settlementdocumentary simply to show a decisionmaker the likeability of my client, and thecatastrophic change to my client’s life as aresult of the incident. Like settlementbrochures, video settlement documentariesput a face, soul and life with the decisionmaker’s file.

3. Day-In-the-Life Videos

Day-in-the-life videos can beimportant tools to show a jury or decisionmaker the true difficulties associated withyour client’s everyday routine. We use day-in-the-life videos in conjunction with aspouse’s testimony or in conjunction with alife care planner’s testimony. The video isplayed for the jury and narrated from thestand by either of these sponsoring witnesseswho will explain the difficulties andproblems associated with various tasks to beaccomplished by the victim. It is one thingto say that it’s hard for my wife to get out ofbed and it is quite another to show exactlyhow difficulty a simple task like this can be.Day-in-the-life videos, in the right case, canbe powerful communicators of a client’s trueimpairment.

4. Things Too Big for The Courtroom

Jury views are a rare occurrence.Video allows you to take the scene to the jurywhen the jury can’t go to the scene. I haveused video to record plant inspections, scenelocations, and large products. These videosshould be recorded in a well thought out anddetailed manner. The videotape can then benarrated by an expert who can explain what isshown to the jury. I like to have my expert inthe video pointing at various important items.Showing your expert at the scene-hands on-gives that expert additional credibility.

5. Re-enactments

Re-enactments are powerful ways toshow the jury how various incidentsoccurred. Re-enactments require the use ofsponsoring witnesses to testify that the re-enactments fairly and accurately depicts theevents shown. Getting re-enactments intoevidence requires the foundation that theconditions of the re-enactment and those ofthe original events are substantially similar. 5

Re-enactments can be extremelyexpensive. In most cases, use of ananimation can recreate events in an effectiveand less expensive manner. Nevertheless, wehave used re-enactments in fire cases to showthe emotion associated with the incident. Re-enactments almost always prove to be verypowerful demonstrative aids when justifiedby the case.

5See Pittman v. Baladez, 312 SW2d 210, 216

(Tex. 1958).

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Creating and Presenting Persuasive Demonstrative Evidence

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6. Testing

In product liability cases we crashtest vehicles or conduct other testing onproducts involved. While your experts arestill consulting experts, videotape theirtesting for later use during trial. The expertscan narrate the testing during their testimonyto explain why it supports their opinions.This gives credibility to the witnesses andbrings to life what could otherwise be aboring testimony about a test procedure.

7. Witness Interviews

As explained earlier in the paper, Iroutinely interview key witnesses. Thesewitness interviews can then be editedtogether for use in settlement and mediationpresentations or as potential impeachmentevidence at the trial.

H. Settlement Brochures

Settlement brochures are, in essence,demand letters that invoke the power of thevisual presentation. We routinely usesettlement brochures to set our cases apart tothe decision maker. Settlement brochurescan be easily and cheaply produced withvarious desktop publishing programs. Thesettlement brochure can incorporate pictures,scans of key exhibits, scans of accidentreports and injury photographs. Asettlement brochure should cover basicliability facts and outline the damages. I endall of my settlement brochures with thedamage elements submitted to the jury, andmy breakdown of a demand for each of thevarious elements.

I. C o m p u t e r M u l t i m e d i aPresentations

Computer multimedia presentationssuch as Power Point are enormously flexibletools in presentation of demonstrativeevidence. Almost every form ofdemonstrative evidence discussed herein canbe presented through the use of a multimediacomputer presentation. Photographs, charts,drawings and sketches can all be shown via aPower Point presentation. Further, thepresentation software now is capable ofreliably playing videotape. Computermultimedia presentations can and should bethe cornerstone of most presentations.

VIII. CONCLUSION

Whether in a deposition, a mediation,a settlement discussion or a trial, the triallawyer’s job is to communicate persuasivelya client’s position. Demonstrative aids are anintegral part of this communication process.With the evolution of technology, creatingand presenting persuasive demonstrativeevidence has become easy and inexpensive. Iencourage you to invest the time andresources to acquire and to learn the basictechnology discussed in this paper. Once youhave learned and understand the basics,creating and presenting demonstrativeevidence will become a routine part of everycase you handle. In the end, incorporatingdemonstrative evidence in every stage of yourlitigation practice will make you a moreeffective advocate and communicator.