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Driving Home Points with Demonstrative Evidence

By Stephen Appelbaum

The genesis for the use of demonstrative evidence during a mediation, deposition, or trial actually goes back to biblical times. Remember that Moses did not come off the mountain and tell the Children of Israel the words spoken to him by God...he brought charts. Six-hundred and thirteen commandments in the Bible, digested down to two boards, with five key items on each chart, numerically indexed. This may have been the first use of Federal Rule 1006, which allows for the use of summary charts of otherwise voluminous material.

As the courts are becoming more liberal with the use of visuals during opening statements, the trial attorney has an increasing obligation to use that portion of the trial to organize the case for the jury. The process of jurors hearing testimony is similar to that of being given pieces of a jigsaw puzzle, one at a time, with the objective to assemble the final picture. Imagine how difficult this could be if one is not first shown the picture on the cover of the box. Using visuals during the opening statement is like showing the jury the cover of the box. Now they know what they are supposed to do with the pieces (testimony), and like the pieces of a puzzle, there is only one way they will fit together to make the picture that the attorney has proposed. During the opening statement each attorney has a chance to show the picture on the cover of her or his box as it illustrates the theme and focus of the case.

The laws of primacy (what the jury heard at the beginning of the case) and recency (what the jury heard last) dictate the innovative use of visuals during opening statements and closing arguments and should be considered when planning for these points in the trial presentation. Visual evidence should be incorporated into the presentation of every key point in both the plaintiff’s and the defendant’s case. It helps to focus jurors on the strength and logic of the attorney’s case and the weaknesses of the adversary’s.

Demonstrative evidence plays an increasingly larger role in trials for several reasons. Jurors now expect to have engaging presentations of the facts. They have come to believe that big cases, both civil and criminal, will have substantial visual components incorporated into them. The pioneering efforts of Attorney Melvin Belli in the last half of the twentieth century toward the effective use of visual aids set the stage for the attorney to think in terms of courtroom persuasion.

Law, by tradition, has been a profession of words and oratory in the courtroom, but we are living in a visual society. The Baby Boomers and Generation Xers have been brought up in front of television sets. They are more accustomed to seeing and hearing news than reading it from a printed page. The success of the newspaper USA Today is an example of color visual support (in the form of maps, charts, and graphics) to supplement the printed story. Even the television medium has maximized the use of visual support for the spoken word, by going to the video of the actual event as opposed to the reporter’s summary and retelling of the events. When introducing a story for a news segment, there will usually be a graphic icon or symbol of some kind on the screen next to the reporter to visually anchor the general theme of the story. Anchoring is an important technique to be considered throughout the trial and should be considered for each key witness or expert. Careful use of demonstrative evidence provides opportunities to anchor concepts and drive home points to the jury.

[This article was extracted from Stephen Appelbaum, Patricia Iyer, and John Parisi, Demonstrative Evidence in Patricia Iyer, Barbara Levin, Kathleen Ashton, and Victoria Powell, (Editors) Nursing Malpractice, Fourth Edition, in press, Lawyers and Judges Publishing Company, 2011.]  

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