Technology creates winning visual evidence.

The effective use of visual evidence is both an art and a science. Evidence can be presented in a variety of ways; however, scientific studies have revealed that visual displays communicate more information to a wider audience in less time than any other method of communication.(1) When exhibits are presented either concurrently or successively with narration, the retention of information improves.(2) Comprehension improves when the exhibits are presented simultaneously with narration.(3)

Visual displays can also elicit emotional responses through subliminal persuasion techniques, such as use of color, lighting, and composition.(4) Print media and television have used visual tools to entice, captivate, and sway audiences for decades. Now the Internet is doing it.

The public has become so accustomed to audiovisual communication that if you do not present information using mass media methods, jurors' attention may wander before you even finish your opening statement.

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;

* reinforce or destroy expert testimony;

* create a believable or unbelievable reenactment of the event; and

* create a long-lasting visual memory, whether positive or negative.

When visuals are combined with strategic presentation methods, the overall effect is persuasive. Because of this, exhibits and animations are useful not only in the courtroom, but also in depositions, settlement packages, pretrial conferences, and mediation.

Some of the ways evidence can be shown to jurors include computer screens; visual presenters; laser disk players; and LCD video, slide, or overhead projectors.

Digital technology has become the norm in the visual communications industry. For example, computerized special effects are common in movies, news programs, and commercials. This technology allows tremendous versatility in manipulating digital files, combining multimedia sources, and generating the finished product in any medium--print, video, digital video disk (DVD), laser disk, CD-ROM, or film--or via a laptop computer.

With digital media, changes can be made up to the last minute, and the product can be archived for future reference. Digital technologies can, but do not always, reduce time and cost factors involved in producing demonstrative evidence. Time is money, so if creating a digital exhibit takes less time than it would to create a traditional one, it costs less. The versatility of the finished exhibit also affects time and cost. Traditionally, the finished product was sent to the attorney; today, it is a digital file that remains with the creator. From that original file, specific reproduction--such as 8 x 11-inch color prints, large color exhibit panels, or digital images to incorporate with videotape or computer presentation software programs--can be created for the attorney to use.

Presentation methods

There are two methods for presenting case information by way of computer: a preplanned, automated presentation or an "on-the-fly," interactive multimedia presentation.

A preplanned, automated presentation of images, case documents, and exhibits can be put together effectively using a slide-show program like Microsoft PowerPoint. With this type of software, presentations can be produced in-house inexpensively, provided you have the time and staff and you are fully prepared for the case. Graphics must be created ahead of time--case documents and exhibits need to be selected, scanned in, edited, highlighted, and magnified if necessary. Then, the images must be arranged in the order they will be presented.

The disadvantage of a preset presentation is that last-minute changes, such as adding new evidence, cannot be made quickly. Also, video clips are difficult to play in these programs, and the quality of real-time audio-video playback is mediocre.

An interactive multimedia program is more expensive, but its versatility far outweighs the cost. Unlike a preplanned presentation, an interactive presentation allows the presenter total control. All case documents, exhibits, videotaped depositions, transcripts, computer animations, and graphics are put into digital format, then cataloged into a database that can locate any document, image, or video clip in a variety of ways--repaginating by Bates stamps, original page numbers, or exhibit numbers--so that each document can be instantly retrieved.

A variety of manipulations are possible. For example, you can display a contract to the jury using an LCD projector attached to a laptop computer. Depending on the courtroom size and case presentation requirements, additional monitors can also be positioned for the judge, witness stand, and plaintiff and defense counsel tables. When displaying the contract, you can highlight a pertinent paragraph in yellow and magnify the text so it can be easily read. You can also underline a sentence with a red line and circle the signature at the bottom of the page in blue.

The same principle applies to video clips. These programs allow you to select and instantly retrieve video deposition clips and play them at real-time speed with no loss in quality, accompanied by an in-sync deposition transcript that can be read on a monitor. The clips can be stopped and replayed if you wish to emphasize a point. New evidence can be added easily, and changes are a breeze.

Below are some digital techniques that can be applied to exhibits and animations.

* Digital illustrations and technical diagrams. Medical and technical illustrations, blueprints, maps, and diagrams created on a computer allow last-minute changes and multiple print options. You can create small prints for the judge and jurors, 8 x 11-inch color prints for settlement packages, or 35 x 40-inch or larger color prints or color transparent film overlays for deposition or trial exhibits. The digitally created images can be used in many formats or media. For example, an illustration can be used as a large exhibit and also be incorporated on a proximate-cause time line or in a videotape of your expert.

* Digital radiographic film color enhancements. This process can clarify real evidence (X-rays, CT scans, MRIs, and so forth) with color rendering, which presents specific areas realistically in color to depict damaged anatomical structures or disease pathology so a layperson can understand what he or she is viewing. This technique is popular not only because it is cost-effective and quick to create, but also because medical experts are comfortable relying on radiographic films for reinforcing and illustrating their opinions.

* Digital photographic alterations. This technique can change part or all of a photograph to re-create a scene at a different time. For instance, the only photograph of an accident scene at a railroad crossing may be one that was taken after safety equipment (lights and crossbucks) was installed. However, the photograph does not accurately represent the scene at the time of the accident. With this technology, the safety equipment shown in the photograph can be digitally removed so that the altered photograph will depict the scene as it was at the time of the accident.

The technology can also be used to recreate visibility factors, such as driving conditions with fog or rain, or to simulate what a client sees after an eye injury that resulted in visual impairment or blindness.

* Digital photographic and illustration merges. This technique incorporates a photograph with an illustration. For example, combining a photograph of the outside of a warehouse with an illustration that depicts the building's contents could illustrate the potential cause of a chemical explosion. Another example would be a photograph of a person combined with a medical illustration that depicts the internal organs and cause of death.

* Digital morphing. With this technique, the image from an original evidence photograph, video still-frame, or illustration can be slowly changed into another image. For example, a photograph of a six-year-old boy with scarring to the face from a dog bite can be morphed to show how the child's face is likely to look when he is a teenager and then an adult, demonstrating how the scar will become more prominent as he ages and reinforcing the need for reconstructive surgery.

* Digital charts and graphs. A visual display of statistical or financial data in a chart, graph, or table can be presented as an animation shown on videotape, laser disk, or CD-ROM or as a two-dimensional panel that is manually constructed as it is presented. For example, for a financial line chart, a baseboard could depict x- and y-axis data, such as dollar amounts and months. An overlay showing projected earnings over six months could be flipped down over the baseboard. A second overlay could depict actual lost profits over the six months. This data could also be shown as a bar chart, to which individual self-adhesive bars could be manually attached.

* Digital time lines and graphic exhibits. These illustrate case-specific facts for jurors and visually reinforce your expert's testimony throughout trial. Time lines can be as simple as a list of chronological dates and corresponding words, or they can incorporate case documents, photos, maps, diagrams, illustrations, animation still-frames, and video deposition still-frames. These exhibits can be displayed simply by presenting the entire chronology at once as one large exhibit, or dramatically by placing each block of text on the time line as the evidence is presented.

* Three-dimensional digital animations. Computer-generated animation is nothing more than linking an accurate series of visual images and displaying the images in real time in an artificial three-dimensional space, using mathematical x-, y-, and z-coordinates. This type of evidence presents information effectively when time, motion, and space are critical issues in the case. Animations fall into three categories: models, demonstrations, and reconstructions.

A model is a three-dimensional scale representation built in a computer from data, such as a blueprint, that can be viewed from any perspective. The model may even be shown with transparent layers or as a cutaway to reveal the interior parts and how they work.

A demonstration is created on the computer as an animation solely to illustrate a physical principle--for example, how light enters the human eye and transmits an image to the brain. The demonstration usually does not represent an expert's opinion, although it can reinforce established facts that must be understood in order to comprehend the expert's opinion.

A reconstruction often depicts an event, such as an automobile accident. Or it may illustrate medical malpractice causation theories or mechanisms of injury and physical trauma. This type of animation depicts the expert's theory of what happened and is usually the most complex and likely to be challenged as inadmissable.

Admitting exhibits

Two-dimensional digital exhibits--digital illustrations, radiographic color enhancements, photographic alterations, and photographic and illustration merges--are admitted into evidence under the rules of evidence with your medical expert's testimony and identified case records, such as untouched X-ray film, medical records, and family photographs.(5) A qualified witness establishes adequate identification of the drawing or photograph and its relevance and testifies about the artist's competence and credentials.

Digital time lines and proximate cause exhibits have evidentiary value greater than the case facts they display. How the facts are displayed can persuade the viewer to rely on important interpretations when making decisions. To establish a foundation for admitting the exhibit, draw from the fact that the expert witness has selected, based on his or her expertise, from the available information and has decided what is important to display.

To establish the foundation for a time line, use a witness who has firsthand knowledge of the dates on the time line. This type of exhibit can be qualified as a finished display or can be built in the courtroom as the witness testifies about each event. A time line presented by an expert witness most likely will be prepared in advance of trial.

Most time lines can be used as either evidence or as testimony aids. If the foundation is not sufficient to support admission into evidence, the court may still allow you to use the exhibit as a testimony aid if the witness asserts it will help in presenting the testimony.

When admitting animations, the identity of the expert who will present the exhibit during testimony must be revealed before trial so your opponent has sufficient time to examine the animation and depose the expert if desired. If you do not disclose this information, you may have a difficult time admitting the animation into evidence due to the "surprise factor." Be aware that if you list your expert to testify only about the accuracy and relevancy of the animation, your opponent can depose the animator as well as the expert. To possibly prevent this, supply the name, address, and resume of the animator and all data used to create the animation--and be prepared to turn over all digital animation files on a disk, especially if the animation depicts reconstruction events at issue in the case.(6)

The foundation for a model animation is usually provided by a layperson who thoroughly knows the object or equipment. The foundation of a demonstration animation is laid by the expert, who can testify to its accuracy and relevancy and that it has been produced in accordance with the laws of physics, biology, or other relevant science. The foundation of a reconstruction animation should be laid by both the substantive expert and the animation's producer.

Do the following in laying the foundation of a computer-generated animation.

* Qualify the experts (in reconstruction animations, both the testifying expert and animator).

* Qualify the computer hardware in comparison with other hardware used in the field.

* Qualify the computer software in comparison with other software used in the field.

* Qualify the data relied on to create the animation.

* Qualify the quality-checking operations used to verify the accuracy of the data and the scientific principles that are used in the animation.

* Identify and prepare to defend assumptions made by the expert.

* Qualify the presenting medium, such as a videotape player or computer.(7)

Hints

When preparing and presenting exhibits, keep the following tips in mind.

* Follow the KISS principle ("Keep It Simple, Stupid"). Any information that is attractively presented in a clear and concise way will be easy to view, understand, and remember. Avoid cluttered, poorly constructed, difficult to read, and complicated-looking exhibits.

* Limit the number of exhibits. Only create visual displays of vital case information. If you have too many exhibits, jurors will become confused and frustrated, are likely to forget most of the information, and will stop paying attention.

* Use different methods to present exhibits during trial. Key exhibits should be presented as large two-dimensional panels that remain on display throughout the trial. Keeping those exhibits visible continually reinforces your view of the case facts and keeps jurors focused on those issues. If the key exhibit is a video animation, have the animator create still-frame images of the key images, and present those on large color panels as well. Again, this reinforces your expert's theories and testimony throughout trial.

Other relevant but less critical information can be viewed using a visual presenter, LCD video projector, laser disk player, slide projector, or overhead projector. For example, you may have a case with 25 documents, but only four are critical to understanding the issues. Display the four as exhibits on large color panels and show the remaining documents on overhead transparencies or a laptop computer. You will be going over those documents with your experts, and the jury will need to understand their content and relevance. Providing the judge and jury with 8 x 11-inch handouts of the documents is another good idea.

* Plan when and where to use exhibits. The size of two-dimensional panels is dictated by the distance from which they will be viewed and other factors. Make sure the exhibits will fit in the courtroom and can be easily read from a distance. Remember that all jurors may not have 20/20 vision. Be prepared to use easels or other audiovisual equipment. If you are not at ease with this equipment, laser disk players, or a computer in the courtroom, hire a specialist to set up and run the equipment.

* Apply strategy. Use exhibits as if you are playing bridge and strategically display them as trump cards. To make an impression, educate, or reinforce a point, play them repeatedly.

Remember, scientific studies have proven that comprehension and retention of information significantly improve when visual exhibits are presented. The timing, manner, and method of presenting critical case information visually can have a tremendous impact on how the jury receives the information, interprets it, and responds.

Notes

(1.) J.S. STANCIL & C.T. MELEAR, PAPER AND CUBE INTERVENTION PRECEDED BY A THREE-DIMENSIONAL COMPUTER GRAPHIC ANIMATION TO IMPROVE SPATIAL ABILITY AMONG ELEMENTARY EDUCATION MAJORS (1991); Richard E. Mayer & Richard B. Anderson, The Instructive Animation: Helping Students Build Connections Between Words and Pictures in Multimedia Learning, 84 J. ED. PSYCH. 444 (1992).

(2.) Mayer & Anderson, supra note 1.

(3.) Id.

(4.) Id.

(5.) FED. R. EVID. 901(a).

(6.) FED. R. EVID. 1006.

(7.) DEANNE C. SIEMER, TANGIBLE EVIDENCE: HOW TO USE EXHIBITS AT DEPOSITION AND TRIAL (1996).

RELATED ARTICLE: Low-tech demonstrative evidence still works

"Bigger, better, faster, more" isn't the best approach to demonstrative evidence in every case.

"A trial can turn into a technology duel with the defense," said Doug Peters, an attorney in Detroit. Plaintiffs reinforce their position as the underdogs when their evidence is presented on poster boards rather than computer screens, he said. Like many plaintiff attorneys, Peters believes that even in a complex case with thousands of documents, high-tech evidence should be blended with more traditional exhibits for the best presentation.

Low-tech evidence has sensory appeal. "It's tactile, something jurors can hold. You want them to interact with each other, to pass the photo from one to the other," said Jim Kreindler, a New York City attorney. "No matter how advanced computers get, I still want something the jurors can pass around."

Plaintiff attorney Stephen Heninger of Birmingham, Alabama, recommends using grade cards to rate the defendant; stand-up cardboard figures; diagrams or charts; time lines; acetate overlays; tools used by the profession on trial, such as scalpels; and video- and audiotape. (Show Don't Tell: Effective Demonstrative Evidence--Persuasive Proof, TRIAL, Apr. 2000, at 55.)

Computers can generate low-tech evidence, according to Bill Bailey, an attorney in Seattle. "Low-tech is no longer writing on butcher paper on an easel in front of the jury," he said. "It can mean exhibits produced by a computer that have relatively low costs attached to them. I don't see that an effective lawyer can get away from the use of computers in some form."

An assist from electronic equipment can make evidence stronger. Rick Ellis, an attorney in Boston, uses an Elmo projector, which is like an overhead or slide projector but is linked to a TV screen. "You can throw hard-copy documents on it and zoom in and highlight and illustrate them on screen," he said. "It's just as effective as using multiple computer screens."

"PowerPoint slides are an indispensable part of the trial lawyer's practice now," said Bailey. He also employs what he calls the "USA Today computer-graphic approach," in which computer-generated graphics serve as a billboard that can be displayed in the courtroom for a long time, versus a computer animation, which plays in seconds.

High-tech computer animations can now illustrate events for jurors who previously would have had to rely on photos and testimony. "Harnessing the computer's ability to illustrate and educate is much more effective than the older forms of evidence," said Bailey. "For example, for a recent case involving an auto-pedestrian accident, we went to the scene and tried to model with real live action what had occurred, but it was impossible to do," Bailey said. "When motion and timing are the central facets, I don't think there's any way out of using high-tech evidence."

Complicated cases

Most attorneys agree that complicated cases involving medical malpractice and products liability, for example, require the attorney to head in the high-tech direction because the amount of information the jury has to absorb can be overwhelming.

A combination of low- and high-tech evidence may make the most effective presentation. For Kreindler, this approach paid off with a substantial verdict for the emotional distress of 13 passengers in a recent case against American Airlines, which flew a jet into known thunderstorms.

"We used a computer animation depicting what happened to the aircraft, with the Statue of Liberty as a reference," he said. "It showed the plane flying to the top and falling to the bottom, bouncing up and down that height over 28 seconds."

Kreindler had deposition testimony read aloud and put a transcription on PowerPoint with the lines he wanted to emphasize in big yellow letters on a black screen so the jury saw and heard the testimony. He also used simple acetate overlays so jurors saw what happened first, then saw subsequent events when he laid the plastic sheets down in layers.

What to use

Deciding when to use which type of evidence is tricky. "Trial-presentation software programs can be useful and may be almost necessary when you have thousands of documents and need to key in on them and get them quickly. But in the average case, all that equipment isn't necessary and may convey the impression to the jury that the plaintiff has lots of money," said Ellis.

"The tougher question is, If the defendant is going to be using a computer-generated trial presentation system, should you take advantage of that and use it if they're going to set it up? You have to weigh the situation that you're in," he said.

"You need to have an awareness of the potential tools out there," said Bailey. "I start at the low end and keep going until I've satisfied myself that I've accomplished the goal that someone who knows nothing about the issue has enough information to understand it without feeling overwhelmed or like they've had their intelligence insulted."

In the end, said Bailey, "whatever promotes juror interest and persuasion is worth doing. If something smacks of hucksterism or a used-car-salesperson approach, there will be sales resistance, whether it's low-tech or high-tech evidence the lawyer uses."

--Rebecca Porter

Shelley Watts is the CEO and founder of Med Art & Legal Graphics Co. in Akron, Ohio.