Our Services: Demonstrative evidence

Presenting demonstrative evidence: What is right for you?

The trial attorney is able to select from a variety of methods of presenting evidence. The four basic approaches include:

Paper system
The paper system consists of the use of flip charts, mounted exhibits, and enlargements of medical records as described above. This is the most commonly used method of presenting demonstrative evidence.

Advantages
Trial-size exhibits are familiar to most trial attorneys and judges. The trial attorney is unlikely to encounter any resistance from the judge regarding the use of the enlarged documents. The use of posters, blow ups of medical illustrations, or enlargements of key documents does not rely on technology in the courtroom. There is no need to be concerned with outlets or equipment failure. Successful use of this presentation system relies on adequate lighting and appropriately sized exhibits. A minimum amount of equipment is needed, consisting primarily of an easel and a marker or pointer. A clear no-glare overlay can be added to the front of the exhibit, which can be marked on with markers so that the original document is left untouched.

The attorney is responsible for selection of the appropriate exhibits, and is able to place them on and off the easel without needing another person to help. Little can go wrong with the use of enlarged documents, with the exception of forgetting to bring them to court, getting them hopelessly out of order if a large number of enlargements are to be used, or selecting documents for enlargement that have inadequate font size. It is relatively easy to create exhibit notebooks for the jury, if permitted in your locale, from paper exhibits. Eight and one half inches by eleven inch reproductions of key documents can be placed in indexed binders so the jury can follow along and refer to the exhibit during deliberations.

Disadvantages
The printing and mounting of each exhibit can be costly, running $50-$200 or more per board. The disadvantages of using enlarged pages include the need to prepare them in advance, to correctly anticipate which pages are going to be crucial to a trial, and to cart around stacks of these exhibits. Companies who enlarge exhibits usually require at least a day’s lead-time. The ability to add another enlarged, fomecor-board mounted exhibit the night before the beginning of trial may be severely hampered by the availability of the outside vendor. Some law firms with high volume trial work have created their own in-house graphics departments with large-scale printers and artists who are able to provide last minute support. Most trial attorneys will continue to need to plan exhibits ahead of time to avoid last minute changes. A final disadvantage is that when a full page of a record is enlarged and placed on an easel in front of the jury, the jurors may become distracted by reading the entire page instead of the section, which is the subject of the testimony of the witness.

Projector/screen systems
The next step up from enlargements of documents is transparencies shown on projectors. The image may appear on a screen or a light colored wall. A favorite tool of lecturers, the transparency projector is versatile. With properly created transparencies, the projector can be used to show key medical documents, major points in opening and closing arguments, medical illustrations, site maps and so on. Another variation of the transparency projector is the erasable white board with a small printer. The attorney or witness draws on the board during key points of the trial. Hitting a print button coverts the image into a piece of paper, which can be admitted into evidence to preserve the drawings.

Advantages
Transparencies are easily made. Most office copiers or laser printers can be used to create transparencies using film specific to that machine. A box of transparency film is inexpensive. Film with colored borders, which add visual interest, is also available. It takes much more time to plan and properly design a transparency than it does to actually print it on the copier. The actual production of the transparency takes seconds. Revision of attorney-created transparencies can be accomplished the night before trial if the attorney is not happy with layout, font size, or content. Key portions of the document can be highlighted with yellow or colored transparency film laid on top of the original film.

Expert witnesses with a teaching background are usually very comfortable with the use of transparency projectors. They may already have appropriate transparencies prepared to teach some of the medical issues in the case. For example an orthopaedic surgeon who was consulted after a fall from a wheelchair that resulted in a fractured hip may have transparencies of the hip joint or of the plates and screws that are commonly used to repair a fractured femoral head.

Another advantage of this equipment is that little can go wrong with the operation of the equipment. Bulbs in projectors rarely burn out, although it is important to have a spare bulb and know how to change it. Lightweight and portable projectors make transportation of the projector much easier than in the past when the units were bulkier.

Disadvantages
Courtroom wall surface and ambient light in the room may make it difficult to see the image created by the transparency machine unless the lights are dimmed. Dark panels on the walls may make it necessary to use a screen, and lots of light from tall windows may flood the room with too much light for easy visibility of the image.

Trial attorneys soon learn that courtrooms come in all sizes and shapes. The ability to place the machine in a position so that the jury and judge can see the screen may be impossible in certain courtrooms. The ideal position for the jury is to have the screen parallel to the jury box. If the jury box is at a ninety-degree angle from the judge, this may place the screen in such a way that the judge cannot see the image. The judge has more flexibility than does the jury in terms of changing position but is sometimes reluctant to get off the bench in order to view the image(s), particularly when the projector is heavily used.

A small table for the projector is an important piece of equipment. One of the authors (PI) once observed a judge become angry because the projector was balanced on the edge of the witness box in order to project an image onto the wall. The placement of equipment needs to be thought out ahead of time, well before the appearance of the projector in the courtroom.

Most policies, procedures, and pages from a medical record are in a portrait mode (with 8.5 inches running across the top of the document). This layout is ideally suited for the transparency projector. However, it is common for some to be designed in landscape (the longest dimension of the document runs across the top.) Nursing home medication administration records and treatment records are commonly in this format. The layout of the projector makes it difficult to show a landscape document without repeatedly sliding it across the glass in order to show the portions of the document.

Electronic projectors
America is a visually oriented culture. Both at home and at work, Americans spend an increasing amount of time obtaining information from television and/or computer screens. Movies, network television, cable television, videos, MTV, computer games, digital videodiscs, and the Internet, among others. To effectively convey information to potential jurors in the courtroom, trial lawyers need to consider employing computer technology.

A number of companies sell projectors that can be used to display a wide variety of objects. The projector can zoom in on small objects, making it easy for the jury to see the object without the distraction of passing it around the jury box. The electronic projector may be combined with a printer, videotape player, or laser disc. The x-rays may be viewed with the use of the visual presenter with an artist’s rendition of the x-rays to make the images more understandable to the jury.

A visual presenter is in large measure an update of the slide carousel (slide projector) with which most of us are familiar. In essence, it combines projection equipment with either a camera or a computer. Visual presenters, including the DOAR and ELMO, are commercially available. They allow hard copies of documents to be placed on a machine and projected onto a screen for the jury to view. The set up is essentially a vertically mounted video camera that can zoom in on any document or object and send the signal to a projector or video monitor. They function as updated versions of overhead projectors, but do not require transparencies.

Advantages
The advantage of the visual presenter is that it allows a jury to see the exhibit at the same time the witness sees it. It also avoids having to hold up blow-ups of pictures or other documents or placing them on easels and the expense of having to have documents blown-up for presentation on fomecor boards. In addition to presenting documents, they are very effective in presenting x-rays and photographs.

The visual presenter is a versatile machine that can be used for a wide variety or purposes. It has an unparalleled ability to display small objects or focus in on minute details of a medical record. Its use does not require dimming lights. The output of the projector may be hooked up to a television monitor or series of monitors which will permit the jury, counsel, witness and judge to simultaneously see the images.

With the decreasing cost of computers and graphic software, attorneys now have the means to create effective charts, graphs, and diagrams for courtroom presentation with minimal expense. Once generated, these graphics can be blown up for showing the jury on traditional fomecor boards or they can be projected from a laptop computer through a visual presenter. The primary benefit of using computer-generated graphics is that they can be modified quickly, providing relatively inexpensive alternative means of conveying the same information which allows counsel to determine which exhibit will aid the jury most in understanding the evidence. It also allows counsel to quickly edit an exhibit to better explain new testimony elicited at trial, or to overcome an objection to admissibility. Key portions of the medical record can be transcribed and placed in boxes next to the actual page. In most cases, the typed text in the boxes will be much easier to read than the original. The imager may be attached to a VCR so that a record can be made of the presentation, to show video footage or a computer animation. The imager is often used in conjunction with a light pen, which permits drawing on the image. With the touch of a button the highlighting can be erased, or the image printed for use by the jury during deliberations.

Disadvantages
Most documents are vertical (portrait) in format, and most video monitors are oriented horizontally. Also, the resolution in video of a full page of text is not as good as transparency projection, and unless it is your intent to use the camera for mostly close-ups of portions of the documents, it is not the best choice for this need.

The visual presenter is best used by the law firm that does a lot of trial work to justify its price tag. Rental of projectors may be possible for law firms who have only an occasional use. The attorney planning to use this during a trial should allow plenty of time for setting up the equipment. It may be necessary to have another person available to run the projector. There is a higher risk of equipment failure in this system. A population of jurors who do not watch much television (a shrinking percentage of the population) may be suspicious of the presentation, characterizing it as a slick presentation that may not be completely accurate.

Digital system
In a digital system, all documents are converted to digital form and stored on a CD-ROM or hard drive of a laptop computer. All applicable medical records would be scanned, saved, and projected onto a monitor or series of monitors. Once stored, these documents can be indexed or bar-coded in a fashion to enable them to be pulled up immediately during the direct or cross-examination of a witness. When projected through a visual presenter, the attorney can take a witness through a document, medical illustration, x-ray, photograph, or virtually any other evidence in the case very efficiently and with maximum impact. Depositions can be saved on the computer in digital or video form, and instantly used to cross-examine a witness. Presentation software can be used to show images of medical equipment or key points in a summation.

Software used to create slide shows (PowerPoint, Presentation, Keynote, and other packages) is an invaluable tool for creating effective slides. Common uses include creating timelines, bulleted or numbered lists of key points, displaying quotes from publications, and summarizing testimony. Slides may be combined with scanned photographs of the client, medical equipment, the scene of the incident, or pages from the medical record.

Advantages
One consideration with regard to using the newer technology in the courtroom is the cost-benefit ratio, taking into consideration the amount of material that will be presented and the cost to rent, transport, set up and run the equipment needed. In those firms that own their equipment and have an appropriate litigation support staff, this is not as much of a concern. In other firms that do not do as much trial work, the cost of setting up equipment, wiring, monitors, screens etc. in those courtrooms that are not equipped can be more troublesome than the benefits of their use. If you will be showing a day in the life videotape or a deposition anyway, adding a video document camera or laptop for a Powerpoint presentation is not as much of a problem as bringing the same equipment in to display just a few documents or charts.

Many pages of exhibits or medical records can be economically stored and used in this type of system. The ability to project specific pages of the medical record, and to zoom into key portions eliminates the need to enlarge and mount specific pages or documents. The attorney can switch from one exhibit or page to another with ease. The cost per exhibit is low. Generation Xers who have spent much of their time watching TV or those who are computer literate may warm to this presentation style.

Disadvantages
The selection, scanning, and organization of key pieces of medical evidence takes time. This is not a presentation style that can be left until the last minute. The use of monitors and computers in the courtroom may meet resistance from the judge, and jurors, particularly those over 50. Environmental barriers may be encountered such as an inadequate electrical supply or glare. A technician may be needed to run the equipment, decreasing the attorney’s control over the presentation of the material. There are risks of technical problems occurring such as the computer freezing or crashing. Unlike mounted exhibits, once the computer monitor is turned off, the image disappears and cannot be referred to later by the jury.

The size and layout of the courtroom is an important consideration. Smaller courtrooms, whether they are old or new, create problems with regard to the placement of monitors and screens. Some judges also have their own likes and dislikes regarding equipment cluttering up the well of the courtroom and even ban monitors on carts, insisting the jury box be pre-wired with flat screen monitors in addition to those of the attorneys, judge and witnesses. Counsel should take great care in deciding what material should be presented "electronically," and what material would be most effective in more tangible, board-on-easel presentations.

Even with these disadvantages, it is becoming clear that more attorneys are exploring this type of technology. Courtrooms are being designed or renovated to permit use of computers and monitors. The days of dragging boxes of records to the courtroom may soon be over.

Regardless of the means by which exhibits are presented to the jury, attorneys still need to plan for the exhibits they will use, and prepare them well in advance of trial. The attorney must consider the ways in which witnesses will use exhibits, and the foundations that will be needed for the introduction of these exhibits. Hopefully, the information provided in this presentation will assist in that endeavor.

This information was abstracted from Appelbaum, S., Iyer, P., and Parisi, J. "Use of Demonstrative Evidence" in Patricia Iyer, Editor, Nursing Malpractice, Second Edition, Lawyers and Judges Publishing Company, 2001.