Developing powerful courtroom 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:

• Show the data
• Induce the viewer to think about the substance of the data rather than get distracted by the design
• Avoid distorting the data
• Present many numbers in a small space
• Make large amounts of data coherent
• 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 time frame. This can be presented in a number of ways:

 

• a treatment calendar showing extensive treatment
• a bar chart showing the number of pain pills taken each day

• a graphic chart showing, for example, the correlation between the clotting times, injections and medication the patient was being given to thin her blood.
• a silhouette chart showing the amount of narcotic needed each day in total number of milligrams

• a line chart showing the number of injections for pain needed each day or the level of pain
• a jar full of jelly beans with each piece of candy representing a pill

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.

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 Anticoagulants: A Double Edged Sword.) 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, through a nursing expert witness, 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, through a nursing expert witness, is to use exhibits to negate, minimize, or shift attention away from the claims of pain and suffering. Demonstrative exhibits work because they:

• Clearly and concisely educate the viewer (minimizing language,educational, or age barriers)
• Give the presenter control of presenting specific information
• Emphasize the damages
• Emphasize or de-emphasize an emotional response
• 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, though a nursing expert witness, 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 nursing expert witness hired by 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.

Frequently refresh the memory of your audience.
Trial exhibits present key components of damages with a variety of witnesses: plaintiffs, treating healthcare professionals, nursing expert 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, through his nursing expert witness, 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. 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.

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