Demonstrative Evidence: Don’t Cross-Examine Without It ̶ Part II


Demonstrative Evidence: Don’t Cross-Examine Without It – Part II

Matt Dodd and Roger Dodd

Matt Dodd comes from a family of lawyers and has been in the courtroom as long as he can remember. After moving his family to the wilds of southwest Montana, Mr. Dodd founded a small, trial-practice firm with offices in Bozeman and Big Sky, Montana.

Roger J. Dodd has active offices in Utah, Georgia, and Florida where he practices trial work of all types. He is listed in Best Lawyers for more than 20 years. He is one of a handful of lawyers nationally who are listed in Super Lawyers in more than one state simultaneously He is Board Certified by the National Board of Trial Advocacy in Civil Trial Practice for more than 25 years, and was a Board Certified in Criminal Trial Practice for more than 20 years. He is a fellow in the American Academy of Matrimonial Lawyers, the International Academy of Matrimonial Lawyers, and the American College of Family Trial Lawyers. He has lectured and taught lawyers and judges in all 50 states, and multiple foreign countries. TV and legal credits include CourtTV, TruTV, CNN, ABC, CBS, and cable TV

As we discussed in our last article, the use of demonstrative evidence in cross-examination is essential to best teach your client’s story and focus the fact-finder on your client’s theory of the case. In that article, we gave you real-world examples of various ways in which demonstrative evidence can be used in constructive and destructive cross-examinations.

In this article, we’ll take a step back and show you how using a theory and themes can guide the use of demonstrative evidence early in the trial process to set the stage before you even begin your cross-examinations.

Finding Your Theory of the Case

Cross-examinations do not spring full grown from the minds of even the best trial lawyers. Although we argue that cross-examination is the most important part of trial, much to our dismay, cross-examination is just one part of the whole. Before you can draft your first question, before you can determine whether a constructive or destructive approach will be most effective, and before you can establish the goals for your cross-examinations, you must develop a theory of the case. Only by developing a theory of the case (early in the case) that is consistent with the facts and your client’s goal(s) can you set up effective cross-examinations and the supporting demonstrative evidence.

At its most basic, a theory of the case is the one-sentence reason your client should be afforded the relief he or she is seeking. One caution, especially for less-experienced lawyers – a theory of the case should not include every fact that supports your case and every fact that hurts your opponent’s case. It should not be a mouthful and it should not be a paragraph on the written page. Rather, it should be a statement as simple as, "My client deserves sole custody of the children because while s/he was at home raising the children, the opposing party spent his/her time away from the home abusing prescription medication." Although a theory does not have to be quite as specific, a theory should convey: (1) why the fact-finder should care about your client, (2) why the fact-finder should side with your client, and (3) how the fact-finder can help your client.

A theory of the case is the "elevator pitch" that won’t put your significant other to sleep when s/he asks what your hearing is about and leaves a friend at the bar asking for more details. Another way to think about a theory of the case is as the moral of the (client’s) story. Any of us who were read Aesop’s fable "The Tortoise and the Hare" will always remember the moral of that story – "Slow and steady wins the race." Just like the moral of "The Tortoise and the Hare," a theory of the case should be easy to remember and paint a vivid picture with few words.

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Because a theory of the case will guide your cross-examinations (during depositions, pre-trial hearings, and at trial), you should be thinking about and evolving your theory from the first meeting with the client. While you may have a number of "stock" theories, particularly if you practice family law exclusively, a theory must be distinctly tailored to the facts of your case and your client’s specific goal(s). For instance, if your male client is built like a linebacker but tells you that his five-foot, four-inch wife physically abused him, you cannot take the same approach – and cannot use the same theory – as if the roles were reversed. In every case, critically evaluate a theory to ensure it is consistent with your client, his or her likely testimony, the expected cross-examinations, the positive and negative facts as you know them, and the goal(s) of litigation.

Using Themes to Reinforce Your Theory of the Case

Now that you have a working theory of the case, how do you persuade the finder of fact that s/he should side with your client? Although you want to keep the focus of the trial on your theory, it is not enough to simply repeat your theory over and over again. That approach will likely draw the ire of the fact-finder and does not lend itself to use beyond the opening and closing. Instead, let your themes – the recurring thoughts, ideas, and/or catch-phrases that support and sum up your theory – be the refrain of your case. Because themes are more akin to the "sound bites" used by those who know how to take advantage of our ever-diminishing attention spans, they are more easily digestible by the fact-finder and more likely to be remembered when s/he retires to make a decision.

An important distinction between theory and theme is the number of each. Because your theory of the case explains what your client wants and and why s/he deserves that relief, there is only one theory for each case. On the other hand, a case may have one, or multiple, themes in support of the theory. For instance, using the theory from the last section as an example, one or more of the following themes could be utilized at trial:

  • "PTA vs. Pills"
  • "Mom persevered and dad turned to pills"
  • "When mom stepped up, dad stepped out"
  • "Only one parent stayed the course"

Each of these themes are short, simple, and easy to remember (the alliteration doesn’t hurt). Each is versatile enough to be used throughout trial and can be used during opening, the direct-examination of the mother, the cross-examination of the father, and closing argument. For the same reasons, the same (or at least consistent) demonstrative evidence can be used for each stage of trial to continually reinforce your theory and remind the fact-finder why your client deserves the relief s/he seeks.

Using Theory and Themes to Drive Your Demonstrative evidences

Now that you have established a theory, and themes to support that theory, you can develop demonstrative evidence that echos your themes and ultimately reinforces your theory.

Our good and respected friend, Shane Henry out of Tulsa, Oklahoma, used this approach to great effect in a recent hearing. The theory of his case was straightforward – custody with his client, the father, was in the best interests of the children. Because the existing custody favored the mother, Shane filed a motion to amend the custody arrangements and served the mother in-state. Without notice or the court’s permission, the mother moved herself and the children out of state and then moved the court to dismiss for lack of jurisdiction. Cognizant that the value of a demonstrative exhibit is in its ability to teach (and to teach quickly), rather than its flash or expense, Shane used an easel pad and a marker to create his winning demonstrative exhibit. His opening statement began, "Your Honor, this case is about a runaway mom," and as he spoke the words, he turned over the first page of the pad to reveal the words "Runaway Mom" written underneath.

Shane’s demonstrative exhibit was powerful not just because it encapsulated, in just two words, why custody by the mother was not in the children’s best interests, but because it "infected" opposing counsel. Rather than his opponent beginning his opening statement with his own theory of the case, Shane’s opponent began with, "Your Honor, this case is not about a runaway mom." Within minutes of the start of the hearing, Shane’s opponent had adopted Shane’s theme and had abandoned or ignored his own. Once Shane’s theme had been adopted, it was easy and natural for Shane to refer to his theme, and the theory it supported, at every stage in the hearing.

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While Shane’s use of the "Runaway Mom" theme was a wonderful approach based on the facts of his particular case, be aware that this same theory could have been turned against his client had the facts been different. If the mom had run because the father was physically abusive to her and the children, the fact-finder may well have been supportive of her decision to run. While the mother had endured years of abuse to protect her children, she eventually had enough and was forced by the father’s behavior to run. She wasn’t running to deprive the father of custody or to hide the children for her own purposes, but to protect them in the only way she could. Rather than being a case of a "Runway Mom," opposing counsel could have used the same facts to argue that this was a case of "The straw that broke the camel’s back." A flexible, and bold, opponent could even co-opt the "Runway Mom" demonstrative exhibit, scratch through the "Runaway Mom," and write "The straw that broke the camel’s back" underneath.

Continuing the theme of "The straw that broke the camel’s back," the prepared lawyer could use his or her knowledge of the facts to constructively cross-examine the father in a way that supports the mother’s decision to run. On cross-examination, the mother’s lawyer could force the father to admit (because it is true) that, before the marriage, the mother had never lived anywhere but in the small town to which she fled and that she had sacrificed much to move away with the father. She had left behind a good job, family and friends, and caring health care professionals. Weaving together the themes of "sacrifice" and "The straw that broke the camel’s back," the cross could end with the loaded question, "Sir, you recognize that the mother of your children sacrificed all of that to move away with you.. .and suffer your abuse?" The father’s response does not matter. You have painted the picture that leads to the fact-finder to the inevitable conclusion that the mother made the best decision she could when she ran for the safety and support of her small town childhood home.

In our PTA vs. Pills case, after introducing the theme, "When mom stepped up, dad stepped out," in our opening statement, we returned to it during cross-examination to reinforce the theory that while our client (the mother) stayed the course to overcome the family’s problems, the opposing party (the father) turned to drugs. During cross-examination, we used a whiteboard to create a simple chart with two columns. On one side, we had the words "Mom Stepped Up" written, and in the other "Dad Stepped Out." As we used constructive cross-examination chapters to force the father to make admissions about all the steps mom had taken to help the family, we would jot them down in her column with a green marker. The choice to use a green marker was specific – in our culture, green has stood for such things as good, growth, warmth, and life.

We then contrasted the mother’s extraordinary efforts with the father’s lack of effort. As we transitioned into destructive cross-examination chapters to force admissions from the father about his drug abuse, his arrest, and his declining financial support for the family, we made notations in his column with a red pen. As before, the color choice was intentional – since we were children, we have been taught that red equals danger or death. By using a demonstrative exhibit to memorialize the mother’s rights and the father’s wrongs, we provided the finder of fact a visual reminder of why s/he should rule in our client’s favor.

The PTA vs. Pills case shows how a demonstrative exhibit can be used with both constructive and destructive cross-examination chapters, even within the same cross-examination. In another case, one of the themes we used was "Garbage in, garbage out." Specifically, we were attacking the psychologist’s findings and conclusions because they were completely unsupported by the actual facts. Our contention was that he could not reasonably have made such findings and come to such conclusions based on the anticipated testimony of witnesses on both sides.

Because we were going to base our destructive cross-examination of the expert on the lack of factual evidence supporting his conclusions, we began with a chart (a computerized graphic could work just as well) listing each element or item of evidence that could support his theory. We listed the plaintiff’s direct examination, the plaintiff’s cross-examination, the defendant’s direct- and cross-examinations, each of the other witness’ direct- and cross-examinations, and the disclosed exhibits.

By the time of the expert’s cross-examination, we had erased each element or item that failed to support the expert’s conclusions – the only remaining item was the defendant’s inconsistent and unsupported direct-examination. We had even erased "Defendant’s Cross-Examination" because we had used a constructive approach in which he was forced to admit facts that supported our case and undercut his own expert’s conclusions. During the expert’s cross-examination, each time we showed that his conclusions lacked factual support, we made a small gesture toward the board. This small gesture (it must be simple and understated) reinforced our point with the fact-finder and trained the witness that every time we moved toward the board, s/he would be punished.

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The real power of demonstrative evidence can be harnessed when you spend the time to develop exhibits that complement your themes and support your theory of the case. Ensuring that you have set the stage with your demonstrative evidence early in trial allows you to use that demonstrative evidence in your cross-examinations to tie admissions and factual evidence to your theory and themes in a way the fact-finder cannot ignore.

Copyright © 2016 Matt Dodd and Roger Dodd

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