Julie Brook, Esq., reprinted with permission from CEB.
The technology used for showing evidence at trial has changed greatly over the years, but the purpose of demonstrative evidence remains unchanged: it breaks the pattern of the trial, clarifies issues, maintains jury interest, and persuades. The challenge for attorneys is to capitalize on new technological resources without causing juror distraction, confusion, and frustration. Here are seven expert tips for meeting this challenge.
- Show the actual evidence.
Fancy graphics are fine but jurors need to see the actual evidence they’ll be looking at in the jury room, whether it’s printed on a poster board or projected on a screen. Key documentary evidence should be presented as is, though highlighted (and perhaps cropped) to direct the jury’s attention to important passages.
2. Use media strategically.
- On direct examination, it’s important for jurors to see the documents the witness is testifying about while the witness is discussing them. Jury research has shown that information delivered both visually and verbally is significantly more memorable. Diagrams and photographs can also help the jury understand a complicated story.
- On cross-examination, be prepared to confront the witness with projections of exhibits, transcript snippets, and video deposition testimony.
- In the opening statement, exhibits can’t be argumentative and such exhibits can and will be objected to on that basis.
- In closing argument, there’s more leeway to argue by presenting summaries of important themes and arguments, lists of key pieces of evidence, timelines, abbreviated charts of accounting data, and video summaries.
3. Don’t discount witness demonstration.
Computer-generated or animated reenactments may be helpful, but you shouldn’t discount the benefit of having the witness get off the stand and show what happened or the results of what happened.
4. Prepare for any use of media.
Before using projectors or other media to present demonstrative evidence, make sure the courtroom is adequately equipped, or that you possesses all the necessary pieces of equipment. Make arrangements with the clerk to ensure that the equipment is set up and working properly in advance. Some jurisdictions may require leave of court to bring technology into the courtroom.
5. Keep it short and simple.
Overuse of lists, graphics, and any other kind of demonstrative evidence exhausts jurors and causes them to lose the ability to focus on what’s important. And each individual graphic should be uncomplicated and clear. The jurors’ eyes should be drawn naturally to the most important part of a photograph or diagram. Avoid cluttered images, pictures that are hard to understand, small typeface that’s hard to see, and anything else that will cause jurors to focus on figuring out what’s being represented instead of internalizing your point.
6. Stay flexible.
Having a computer on hand with access to the Internet and a library of all exhibits in the case, in addition to a projector, is an extraordinary trial tool. This allows you to research and generate demonstratives on the fly. And just because you’ve invested time and money into creating trial graphics doesn’t mean you must show them. As with other aspects of trial practice, preparation is important, but equally important is flexibility and nuance in the face of changing trial circumstances.
7. Flip your opponent’s demonstrative evidence.
If your opponent presents a demonstration, uses graphics, or provides photographs, think how you can convert that demonstration into your own. The jury likes nothing better than to see the tables turned on someone who has used sophisticated demonstrative evidence.
Before you head into trial, review the expert advice on strategy and tactics in CEB’s Effective Direct and Cross-Examination, chapter 1. On using demonstrative evidence and trial exhibits generally, check out CEB’s California Trial Practice: Civil Procedure During Trial, chapter 13.