Our Services: Demonstrative evidence
Developing powerful exhibits
Almost every case can benefit
from graphic illustrations used during opening statement,
as visual support during testimony, or during closing argument.
Graphic illustrations include tables, graphs, and timelines.
These illustrations:
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Show the data
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Induce the viewer to think
about the substance of the data rather than get distracted
by the design
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Avoid distorting the data
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Present many numbers in
a small space
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Make large amounts of data
coherent
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Encourage the eye to compare
different pieces of data1
The pain and suffering the plaintiff experienced can
be illustrated through a variety of formats, as described
above. One of the key pieces of information is the amount
of pain medication the plaintiff received during a specific
timeframe. This can be presented in a number of ways:
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a treatment
calendar showing extensive treatment |
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a graphic
chart showing, for example, the correlation between
the clotting times, injections and medication the patient
was being given to thin her blood. |
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a line
chart showing the number of injections for pain needed
each day or the
level of pain |
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a graphics
image showing syringes and pills needed each day for
pain |
The creation of this type of
exhibit requires the ability to analyze the medical record,
looking for each place where pain medications would be documented.
A legal nurse consultant can be an invaluable resource for
developing this type of exhibit.
Recently we worked with Louis Solimano of the Law Office
of William Gallina in Bronx,
NY. The liability issue
related to the administration of multiple injections to
patient who was on Heparin. The patient developed a massive
collection of blood in her buttock, resulting in sciatic
nerve damage and foot drop. (Read more about the case in
this related
article.) Several exhibits were prepared for this case.
A graphic chart was created to show the correlation
between the clotting times, injections and medication the
patient was being given to thin her blood.
We asked Mr. Solimano to describe how the exhibits helped
him. His comments about this exhibit were “The exhibits
you provided charting her intramuscular injections, from
her admission date through her discharge date, with the
medication key chart were extremely helpful.”
Another exhibit showing a figure of a woman documented
the location of each injection that was given to the patient.
Mr. Solimano commented: “Your reading of the pain
medication chart, and transplanting those readings into
dates, times and locations of the intramuscular injections,
and transposing them into a female anatomy was equally impressive.”
We also prepared a calendar which showed each injection
given and correlated the shots with the medication the patient
was on at the time. Finally, a timeline presented the critical
events during the delay of nearly two days before the hematoma
was surgically removed. Mr. Solimano said that this chart
made his cross-examination of the defendants an easier task.
The Suffolk
County case settled on the fourth day of trial for $625,000.
The plaintiff attorney’s
purpose in using exhibits to present damages is to persuade
the jury that the event or circumstances that gave rise
to the injury had a demonstrable impact on the plaintiff.
The defense attorney’s purpose is to use exhibits to
negate, minimize, or shift attention away from the claims
of pain and suffering. Demonstrative exhibits work because
they:
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Clearly and concisely educate the viewer (minimizing
language,educational, or age barriers)
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Give the presenter
control of presenting specific information
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Emphasize the damages
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Emphasize or de-emphasize
an emotional response
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Create a long-lasting visual memory, whether positive or negative.2
Emotional appeal to the jurors is not enough if the attorney does
not have evidence to satisfy the jurors. Jurors are impressed
with hard data in the evidence. Demonstrative evidence organizes
hard data such as medical bills, photographs, x-rays and other
data that jurors can see and touch. This is among the most
persuasive evidence they will receive. Jurors use the hard
data to support the unconscious, emotional decision about
how they desire the case to turn out. If any attorney makes
an emotional appeal which wins the jury’s favor and then
fails to offer validated evidence, jurors may subliminally
punish counsel and client alike for leading them astray emotionally.
Aristotle’s Principles
of Persuasion
The Greek philospher
Aristotle presented five principles of persuasion:
Well Dispose your audience
to you and ill dispose them to your enemy.
Trial exhibits permit the trial attorney to make her points
about the pain and suffering experienced as a result of
the injury. Well-planned use of a variety of trial exhibits
provides the chance for the attorney to demonstrate a mastery
of the damages of the case. Selection of appropriate, easy-to-understand
exhibits displays consideration for the needs of the jury.
A complex exhibit that is difficult to understand will frustrate
the jury and reflect negatively on the attorney. Presentation
of trial exhibits in a coordinated, effective way shows
the professionalism of the attorney.
Maximize your salient points
and minimize your weaknesses.
The plaintiff attorney is careful to not overreach or exaggerate
the damages. Information about damages needs to be presented
in a fair, ethical and unbiased fashion. Trial exhibits
prepared by the plaintiff attorney may focus primarily on
the initial impact of the injury in a case involving severe
damages, but an eventual return to health. Acknowledgement
that the plaintiff recovered and returned to work, as shown
on a timeline, is essential for maintaining credibility
and weakening the opponent’s opportunity to attack
the impact of the damages. The defense attorney’s strategy
may include acknowledging the seriousness of the injuries
and using exhibits to focus on disputing liability.
Refresh the memory of your
audience frequently.
Trial exhibits present key components of damages with
a variety of witnesses: plaintiffs, treating healthcare
professionals, expert fact witnesses, family, coworkers,
or friends. Planning trial exhibits involves looking at
the entire damages aspect of the case and determining how
to present or refute exhibits that depict the damages sustained
by the plaintiff.
Execute the required level
of emotion.
The word pictures that the plaintiff attorney creates, combined
with the tangible physical evidence in the form of trial
exhibits, combine to create an emotional appeal. As described
below, the plaintiff attorney has to be careful that the
trial exhibits are not labeled as prejudicial.
If an attorney makes an emotional
appeal that wins the jury’s favor but is unable to
provide the evidence (in the form of trial exhibits derived
from medical records documenting damages, for example),
the jury may subconsciously punish the attorney and her
client.
The defense attorney must counter
demonstrative evidence that is designed to elicit sympathy,
bias and prejudice and help the jury recognize when such
improper innuendo is being placed before them.
Engage the senses
The trial attorney must involve the senses of the jurors
to engage their interest in the plaintiff’s story.
The great Chinese proverb said that a picture is worth a
thousand words. The truth of that statement is well-known
to trial lawyers. Visual materials convey ideas and facts
to jurors far more effectively and persuasively than presenting
a case through trial testimony alone. It has been demonstrated
by social scientists that although jurors retain approximately
fifteen percent of what they hear, they will retain almost
eighty-five percent of what is presented to them by both
auditory and visual means. The skilled advocate will learn
to create word pictures in the minds of the jurors through
the use of demonstrative evidence, evocative language, storytelling
techniques, very careful word selection, and the use of
rhetorical devices.
Another major benefit of preparing
timelines for these types of cases is that the process forces
the attorney to organize the information in advance of trial.
As a result, the attorney is better prepared for trial or
early settlement conferences. Displaying such exhibits during
settlement conferences can be an effective strategy. Not
only does it help the defendant see the merits of the plaintiff’s
case, it shows counsel’s preparedness and commitment.
It also demonstrates that the attorney is prepared to fund
demonstrative evidence and suggests that other exhibits
may be in preparation. This is a win-win situation for the
attorney. Even if the case settles before trial, early preparation
of demonstrative evidence can be viewed as an investment
is more of an investment rather than an expense. It may
help increase the other side’s settlement offer.
References:
1. Tufte, E. The Visual Display of Quantitative Information,
Cheshire, CT: Graphics Press, 1983
2. Watts, S. Technology creates winning
visual evidence, Trial, September 2000, 68
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