Avoiding 10 pitfalls of demonstrative evidence.

"Bear with me, your honor. I'll get this easel up in just a couple more minutes."

"Oops, let me rewind this tape, and we'll get things rolling right away."

"Your honor, may I please have the bailiff come over here and show me how to connect this VCR?"

"Never mind, Dr. Johnson. Just tell us in your own words how you performed that surgery."

We have all had embarrassing moments like these in the courtroom. Usually they happen at critical points when all eyes are on you as you try to get jurors involved in your case through the use of demonstrative evidence. How effectively you use charts, photographs, videotape, and the like will go a long way toward clinching your success at trial.

We know that the mind retains visual images with greater accuracy and for a longer period of time than the written or spoken word.(1) Today's jurors have short attention spans. To them, words are boring. They demand action. Everything is equated with television and geared toward a 30-second presentation.

Even a lengthy Perry Mason closing argument from the old television drama would fail to hold the attention of an audience now tuned into the patter of a 30-second summation from Ally McBeal.

To hold jurors' attention and help them understand your client's case, you must know how to appeal to their senses, to reach beyond the spoken word. A failure to effectively use demonstrative evidence is to abandon the majority of jurors who need this kind of visual stimulus to understand the facts. There is a Chinese proverb that states, "Tell me and I will forget, show me and I may remember, involve me and I will understand."(2)

The following are 10 common pitfalls in preparing and using demonstrative evidence and advice on how to avoid these traps.

1. Seat-of-the-pants exhibits

Scenario: You just received a call that your case is first up in the morning. Your client is ready to testify. You have all your witnesses under subpoena. You start working on what you are going to say in opening statement, and then you start thinking about demonstrative exhibits.

Solution: Think ahead. This scenario is a recipe for disaster even for the simple wreck case. The night before trial is too late to think about how to incorporate accident scene photographs or diagrams into witnesses' testimony.

Preparing demonstrative exhibits early in the case forces you to think about the progress of your case, the value of your evidence, and the order of your witnesses. It forces you to choose and use the pieces of evidence you think will best illustrate the important points in your case. Good preparation leads to good organization of your case--a fact that won't be lost on the jury.

Do not wait until the night--or even the week--before trial to prepare your exhibits. This tactical error inevitably lands you in the courtroom with sloppy exhibits. Worse, you may not be able to use those exhibits at all.

2. The unpracticed practitioner

Scenario: Heeding the advice from the previous scenario, you have worked hard to put together a slide presentation for your door-latch expert to explain how your client's car door sprung open on impact. Despite getting approval from the expert on which slides you are going to use, you failed to mention the order in which you plan to present them. At trial, the expert has finished explaining the significance of slide No. 5 to the jury, and now he or she wants to see slide No. 19. The next thing you know, you are fumbling with your slides, and you swear to yourself that you will never do this again.

Solution: Practice, practice, practice. You invite danger if you skip this step. Whether you are presenting photographs, demonstrating how centrifugal forces threw your client's body from the vehicle, or running a computer animation in front of the jury, you must have a couple of dry runs to feel comfortable in the courtroom.

You would not dare walk into a courtroom to give a summation in a case without practice. Why spend the time and money to prepare an exhibit if you are only going to bumble your way through the presentation? Doing this will only thwart your goal of using demonstrative evidence to help jurors understand your client's case.

3. Failure to mark and agree on exhibits

Scenario: You are at trial, ready to show your witness five photographs of the accident scene. All of a sudden, defense counsel pops up and complains in front of the jury that he or she has never seen these exhibits and in fairness to his or her client wants to review them before they are shown. Of course, the judge obliges.

Defense counsel slowly flips through each photograph and confers with his or her client before handing them back. Now you must have the court reporter mark the exhibits, and get the witness to identify and authenticate the photographs. Meanwhile, the jurors sit and fume, wondering why these apparent administrative tasks are taking place now.

Solution: Meet with the opposing counsel before trial and review your exhibits so that objections can be handled before the jury is seated. Neither judge nor jurors appreciate your wasting their time with tasks that could easily have been done earlier. The judge will more than likely punish you and may even exclude an exhibit because it comes as a surprise at the trial. Jurors may perceive that you are trying to pull something "slick" over the opposing side. You lose on all fronts.

4. It worked fine yesterday

Scenario: You have a day-in-the-life videotape of your client. For the past three days of trial, the court's television and VCR have been sitting there ready for you to use when needed. You are going to play that videotape first thing the next morning when the jurors' attention is highest.

Morning comes, and you proudly announce to the court and jury your intentions to play the tape, only to find out that the television has been taken to another courtroom or that the VCR "eats" any tape it receives.

Solution: Use your own equipment or rent good equipment, including courtroom mainstays, such as easels. Believe it or not, not all easels are the same or hold the same writing pads. If using a writing pad, bring extra wide felt tip markers. If using the courtroom's chalkboard, bring extra chalk.

Get a good television/VCR combination machine for video presentations. If you are using a computer-generated animation, make sure your video player has frame-by-frame capability so you can stop the videotape on an image without seeing a blurred screen.

5. The wrong-size courtroom

Scenario: You have prepared all of these nice glossy charts and timelines to help you present your client's case, and you roll them into the "grand" courtroom only to find out that the case is going to be heard in courtroom No. 3. This smaller courtroom only allows for about five steps between the witness box and the jury. You are so close to opposing counsel that you can read his or her notes from your chair. Your charts block the view between the trial judge and jury, and there is no way the judge is going to stand for that.

Solution: Know your courtroom. Each one is different, and you must keep this in mind when preparing exhibits. Where does the jury sit? Where can you display your exhibits so that they do not obstruct the view of the judge, jury, and counsel? Where would the overhead projector screen best be located? Does the projector even work? Before you walk into that courtroom, know where to place each demonstrative exhibit so you can get the most bang for your buck.

6. False starts with authentication 

Scenario: Your accident reconstruction expert has prepared a diagram based on your client's description of the crash. This expert relies heavily on a reference point mentioned by the emergency medical services technician who arrived at the scene shortly after the collision. The only problem is that the technician moves the reference point during his or her testimony at trial. Your expert assumed that the reference point would be "here" and now it is "over there." Your detailed diagram has been blown apart because it assumed facts that were not in evidence.

Solution: There's not much you can do at this point except call it a learning experience. Rule 901(a) of the Federal Rules of Evidence requires authentication or identification as a condition precedent to the exhibit's admissibility. According to Rule 901(b)(1), this testimony can come from a "witness with knowledge" who can testify that "a matter is what it is claimed to be." Rule 104(b) directs the court to admit evidence when its relevancy depends on verifying its authenticity and when the court has sufficient evidence to support its verification. "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition."

You must make sure your underlying fact witnesses support your experts' testimony during demonstrative evidence presentations. Before your expert finalizes his or her computer-generated animation or diagram of how the accident happened, review preliminary drawings or film clips with the fact witnesses to make certain they will support you at trial.

Otherwise, not only will you lose the opportunity to admit the evidence in trial and have the jurors take it back with them to the jury room, but you will also set up your expert witness for some very grueling cross-examination on opinions that are not substantiated by the facts. Most important, you will lose credibility with the jury.

7. The judge speaks

Scenario: Your client's auto collision case revolves around severe injuries that required painful epidural shots in the lower back. You decide to videotape your client's doctor making the injections. It is no small task getting the doctor to agree to be taped. You get to trial, and while the physician testifies, you start to play the videotape. The judge interrupts and excludes it as being too prejudicial.

Solution: Know your judge. Whether your exhibit gets admitted at trial as evidence for the jurors to take back with them in deliberations, or whether it is shown simply as demonstrative evidence, you still have to get it past the trial judge. Under Federal Rule of Evidence 403, the judge can exclude relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Remember, most evidentiary rulings, including those relating to the use of demonstrative evidence, are at the judge's discretion.(3)

Only Federal Rule of Evidence 611(a) comes close to addressing the use of demonstrative evidence and exhibits. "The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, [and] (2) avoid needless consumption of time...."

The advisory committee purposely left this issue broad by stating, "The use of demonstrative evidence ... and the many other questions arising during the course of a trial ... can be solved only by the judge's common sense and fairness in view of the particular circumstances." Since this is a discretionary ruling, great deference is given to the judge regarding the admissibility of evidence. The alleged error by the trial judge must equate with a "clear abuse of discretion, amounting to an error of law." You will face an uphill battle in an appellate court when seeking reversal on this type of decision.(4)

Do some homework on the trial judge to get a feeling for what he or she will allow. Talk to other lawyers who have had cases before this judge. If you have any questions about using an exhibit at trial, see if you can get an agreement from opposing counsel on its admissibility.

You never know, the other side may agree for a variety of reasons, and you can avoid putting the decision-making burden on the judge. If opposing counsel does not agree to an exhibit's admissibility, file a motion in limine to get a ruling as soon as possible. Again, take these steps to avoid wasting the jury's time and your time, while also possibly saving a lot of money.

8. Woe is the presentation

Scenario: You have developed a nice slide presentation of the accident scene. As soon as you get the bailiff to cut the lights off in the courtroom, the expert--who doesn't have a pointer to help describe the events--steps up to the screen and, turning his back to the jury, begins to point out significant images with his hand. Fifty minutes later, the bailiff turns the lights on, and two jurors are sound asleep. It turns out their view was blocked by the expert's body during the demonstration.

Solution: Make sure you understand how your experts and other witnesses will interact with the exhibits. The presentation of evidence is just as important as the evidence itself. If you or your witnesses have to wrestle around with exhibits, the exhibits fail. If you are unable to operate the equipment to present the evidence, the evidence fails. Whether you like it or not, you are putting on a show. If the show does not go smoothly, your case has a weakened chance of success.

If you are going to use an easel and pad, write what you want to say on the pad before you get to court. Use a big marker and write in straight lines so jurors can read the writing. If you are thinking about using the courtroom's chalkboard during trial, be prepared for opposing counsel to erase everything you write before presenting his or her testimony.

If you want jurors to pay attention to what your witness is saying on the stand, do not pass out exhibits for them to examine during this testimony. Either give jurors the exhibits afterward or walk slowly down the juror box with the exhibit for each juror to see before you continue with the testimony.

If your client underwent years of medical care with different physicians, consider using a timeline chart. Use different colored stickers for visits with each doctor. Incorporate these charts with the direct examination of your client, as they will help the jurors review the testimony related to medical care.

9. Faulty assumptions

Scenario: Your client is catastrophically injured in an automobile collision. Everyone in your office, including you, assumes that liability is crystal clear. At trial you exhaustively prove your client's injuries through expert witnesses and exhibits. The jurors, by their verdict, tell you what they thought of your assumption about liability.

Solution: Unless liability is admitted during the trial, never assume jurors will side with you on this issue. Present your exhibits in the same order of proof at trial: negligence, causation, and damages. Reversing the order invites the defense to tell jurors that you spent all of your time talking about dollars because your client has no case regarding liability.

When the damage phase of your case does approach, don't assume jurors will react to your client in a particular way. Be careful not to overexpose your client to jurors because you may risk desensitizing them to his or her injuries. If the client is catastrophically injured and the trial is lengthy, consider presenting him or her in court only during critical portions of the trial. If you have particularly compelling testimony, introduce it when you feel the jury will be most attentive.

10. Turnabout is fair play

Scenario: You have prepared an expensive computer-generated animation of how the automobile collision occurred and how the defect caused your client to be ejected from the vehicle. Opposing counsel has a computer-generated animation too, but this version shows the defect had nothing to do with your client's injuries. Your animation gets admitted into evidence during testimony from one of your expert witnesses. When opposing counsel's turn comes, the attorney not only plays the defense's animation but also yours. Opposing counsel's eyewitnesses then testify that your animation is inaccurate. All of a sudden, your animation has been effectively used against you.

Solution: There's not much you can do unless you are certain your eyewitnesses to the accident will corroborate your version. To prepare for an unexpected turnabout regarding demonstrative evidence, always ask yourself before trial what would happen if you present a particular piece of demonstrative evidence. How will the opposite side react?

In the described scenario, you may have anticipated that the defense would present its own animation for its witnesses. As the one first presenting evidence to the jury, consider playing both versions during your case in chief. When each of your eyewitnesses testifies that your animation is accurate and the defense's is inaccurate, you not only have authenticated your animation and the opinions of your experts, but you have also discredited opposing counsel's animation and his or her expert's opinions.

What would happen if the other side produces an eyewitness who testifies that your animation was not accurate? Are you going to be able to cast doubt on contrary testimony? Asking the question "What would happen if ..." will help you ward off a courtroom disaster before it can strike.

Mastering the use of demonstrative evidence will undoubtedly help you become more successful at trial. Through practice and preparation, you can avoid most if not all of these common pitfalls.

Notes

(1.) THOMAS A. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES 178 (1980).

(2.) Stephen D. Heninger, Cost-Effective Demonstrative Evidence, TRIAL, Sept. 1994, at 65.

(3.) Hofer v. St. Clair, 381 S.E.2d 736 (S.C. 1989).

(4.) Id.

Mark C. Joye practices law in North Charleston, South Carolina.