The techniques of demonstrative evidence have become so widespread that it is no longer unusual to walk into a courtroom and see stacks of blow up photographs and diagrams. The techniques that we tend to take for granted in even a small to medium-size personal injury case can fully be appreciated by simply wandering around the courthouse and observing the typical criminal case. Because of funding, unfortunately, litigants often suffer a lack of effective communication with the jury through the failure to have demonstrative evidence available. A few years ago, while sitting around waiting for a jury to come back, I observed a first degree murder trial. The prosecutor kept handing the key witness small 3x5 photographs of the death scene, sprinkled with lengthy discussions as to the content of these photographs, the marking of "x"'s, etc., all to the complete mystification of the jury. The jury had no idea what the attorney and the witness were talking about, and the ultimate passing of these photographs to the jury did little to solve the problem. The prosecutor should, at the very least, have done a sketch on a chalkboard to illustrate what he and the witness could observe in the miniature photographs.
In this day of television, the Internet, etc., we exchange ideas through observation with a minimum of talk. Talk is confusing, boring and strains the attention span of the jury. Illustrations, blowups, models, actual working parts of the product or automobile in question and other examples of demonstrative evidence sprinkle the courtroom with exciting drama, and more importantly, improve the clarity and communication necessary to winning lawsuits.
Computer Simulations
The most exciting new toy in demonstrative evidence is computer simulation. There are companies who specialize in recreating the facts of an accident in live, action-packed simulation, which reinforces the testimony of the accident reconstruction expert. An example would be a child dart-out case where the plaintiff's theory is that it can be determined with the use of mathematical calculations, that the defendant wasn't paying attention because he had ample time to have seen the child. Often, in these cases, there is little or no braking on the part of the defendant, which may reinforce the argument that he wasn't paying attention. The defense position is always that he had no opportunity to get to his brakes. The triangulation approach involves computing the speed of the defendant's vehicle versus the likely speed of the child on a bicycle, or pedestrian, or whatever, and tracing their paths as they meet at the point of impact. An appropriate computer simulation to back up the testimony of plaintiff's expert can graphically illustrate that the defendant had more than ample opportunity to be aware of the child's presence had he been paying proper attention.
Blow-Ups
When using enlargements of photographs the attorney must consider the following:
- Which photographs should be enlarged?
- Should the enlargements be in black and white or color?
The cost of a 30x40 black and white enlargement has been competitively reduced so that it is no longer prohibitively expensive to use 10 or 15 of these in a typical trial, especially when one compares these costs to the cost of producing medical testimony or expert testimony. In general, black and white enlargements should be used unless there is some distinctive feature which can only be illustrated in color. It is not just a consideration of cost. Color photographs tend to produce pleasurable attitudes on the part of the jury, whereas black and white is generally somber and depressing. Everyone has had the experience of taking color photographs of a relatively dismal environment where the photographs seem to give it excitement and effectively mask the real mood.
Injury photographs obviously should be in color if one chooses to enlarge them in the first place. Personally, I favor enlargement of pictures taken of the plaintiff before his injuries, which will strongly illustrate his strength and vitality. Blowing up injury photographs taken after the accident may be easily viewed by the jury as an attempt to unnecessarily appeal to emotions. Gruesome photographs can be just as effective in a small size without running the risk of sending a subliminal message to the jury that the plaintiff's case is strictly an appeal to sympathy.
Models
Three-dimensional models are often preferable to photographs depending upon the tactical considerations involved. The problem with models is that there can be endless debate over whether they accurately represent the situation at the time of the accident, and they are extremely expensive. We have, on occasion, used working models which not only illustrate in a three-dimensional fashion the circumstances of the accident, but duplicate the accident itself. One has to be extremely careful in using models to make sure that the theory of the case is supported. More than one case has gone down in flames because of a model which doesn't work.
Use of Projectors
It has become reasonably fashionable to use projection devices to show documents and photographs during the course of examining witnesses. I am strongly opposed to this approach in most cases for the simple reason that the images are not permanent. If a document or photograph is important enough, it should be blown up into a permanent poster size. Saving a few dollars by using a projector so as to temporarily illustrate to the jury the contents of a document or the images in a photograph may expedite the putting on of testimony, but it is cumbersome to try to use the projector again during argument. Further, during deliberations it is difficult for all of the jurors to look at the same photograph or document at the same time. If there is some message that is strongly conveyed in the document or photograph, then it should be blown up and perhaps underlined during the course of testimony so as to form a permanent record available to be used from witness to witness, during argument and by the jury in deliberations. For example, I have tried bad faith cases in which we have literally blown up all the pertinent documents contained in the entire claims file, which might involve 40 or 50 poster boards for a total cost of $2,000. However, these boards are invaluable in having immediately available, for all to see, the incriminating remarks made in letters and memos by the insurance representatives.
Day in The Life Films
More and more attorneys are using "day in the life" films for settlement purposes. Unfortunately, many of the companies that make such films are run by people who know nothing about rules of evidence. The bottom line is that a "day in the life" film is not going to be admissible in evidence if it contains subtitles on the screen or any narration that the jury can hear. Often in these films, the camera pans to some document or photograph,la a Hollywood production. The problem with this is that, for settlement purposes, such films may be fine, but they are worthless in trial because they clearly would be objectionable, not only as hearsay, but as argumentative, because they may refer to documents or photographs which are not in evidence. In fact, it is not necessary to hire a "day in the life" production company to do one of these films. All that is required is a simple hand-held video camera. The best films are no more than 10 minutes in length, illustrating the typical activities that plaintiff must go through to carry out his normal daily routine in his disabled condition. There is no narration necessary because nothing is more dramatic than a 10-minute silent film in a courtroom. If the film is too long, the jury will become bored and the impact will be lost. The films are usually shot in color, but you may want to shoot in black and white, again to emphasize the depressing situation, especially if the plaintiff has been forced to live in relative squalor because of the accident. Generally, these films start out with the plaintiff getting up in the morning and end with him going to bed, but they may in fact be used only to illustrate some particularly difficult aspect of his daily routine, depending upon the facts of the case. The point is that the trial attorney should decide in advance what is to be illustrated.
In a recent case involving a plaintiff who was in a waking coma and had little or no reaction to the outside world, we discovered that when his small children came home from school he would become much more animated, which obviously showed that he was aware of his surroundings. The film that was done featured this aspect of his life and was done spontaneously at the appropriate time of the day, so as to make this the central theme in the video and the subsequent trial.