The art of demonstrative evidence: seeing may be believing, but how and when demonstrative evidence is presented can make the difference between persuasion and confusion.
While we learn and communicate with all senses, sight is our primary sense. Humans assimilate 83 percent of data through sight; only 11 percent is gained through hearing, with the rest divided among the other senses. (1)
But to be effective, demonstrative evidence must be used with care. It can unintentionally distance the lawyer and, most important, the plaintiff and his or her story from jurors. (2)
Demonstrative evidence used in either the opening statement or summation should be focused and visceral. Medical negligence cases lend themselves to powerful visual messages. A picture of an unkempt, tired nurse, a model of a spine showing back surgery done at the wrong level, and the apparatus needed to feed a brain-damaged child all shout "medical incompetence."
In addition, jurors will recollect more testimony when a witness's words are combined with a visual summary that includes words or pictures displayed on a chart or a projection screen while the witness is testifying. (3) But lawyers must be careful not to put the cart before the horse. When demonstrative evidence is presented before the testimony it illustrates, jurors may focus on the visuals and tune out the words.
The backbone of any plaintiff's case is its theme, the picture or phrase that concisely tells what the case is about. (4) Demonstrative evidence is especially helpful in reinforcing a case's theme. For example, the theme "the defendants took the gamble, but only the patient put up the stakes" may be illustrated by a chart displaying the many choices made by the health care providers next to the few available to the patient. Cases involving nursing errors in administering medications or fluids may be best supported by a case theme of "too much too soon." Exhibits could show the differences between the correct dose and the amounts given to the patient.
Using color helps reinforce themes. To many people, green conveys an image of safety, while red suggests danger. To show that a defendant doctor "ran a medical red light," consider a graphic depiction of a stoplight, where green represents a safe condition and red the patient's clinical presentation.
Medical risk factors can be highlighted with a red flag instead of bullets or numbers. For example, to illustrate a plaintiff's risk factors for pulmonary embolism, the lawyer might put a list of the words "nausea, dyspnea, fatigue, obesity, and syncope" under the heading "Charlotte's Risk Factors for Pulmonary Embolism." But a chart titled "Ignored Red Flags for Charlotte's Pulmonary Embolism," with red flags pointing to the listed risk factors, would pack more visual punch.
Images also support themes. When summarizing trial testimony, the lawyer might present an image of a tilted scale, with eight people standing on one side against a single person on the opposite side, to graphically convey a preponderance of evidence better than the words "eight witnesses versus one." An image of a jug full of 7,300 aspirin pills can symbolize daily pain more effectively than a display of the formula "10-year life expectancy x 365 days x 2 aspirin a day = 7,300." Also, a key document can be emphasized when juxtaposed with an image of a smoking gun.
Jurors need to comprehend what happened when, and computerized storyboards can effectively show the relationships among people, places, and things over time. For example, in a case involving multiple defendants, arrows color-coded to denote each party can indicate relationships and obvious conflicts among parties and illustrate the theme that "everyone is pointing fingers, and no one wants to be personally responsible."
Making a basic storyboard to illustrate key themes and significant facts is not difficult. Lawyers can obtain printed pictures of deponents from video depositions. Dates and times can be placed on the storyboard, and the jury can connect them with the faces of the players.
For example, in a case my firm handled concerning failure to diagnose an impending pulmonary embolism, the defendant doctor denied that the patient suffered shortness of breath. The storyboard contained an image of the doctor during deposition and excerpts from the plaintiff's medical record showing that three nurses on consecutive shifts all wrote "SOB," for shortness of breath. The storyboard had a red flag next to each warning, showing that it was ignored. This exhibit summarized the evidence for shortness of breath while anchoring it to the defendant and visually conveying the plaintiff's theme of "no one would listen." (5)
A visual depiction of events on a time line may be the most important demonstrative aid in a medical negligence case. By depicting the progression of events in a case, time lines allow jurors to easily comprehend any alleged medical mismanagement. Because time can be a challenging concept to convey, time lines should rely on color, space, and conciseness to emphasize the key issues related to the alleged standard-of-care breach.
Our firm used the time line above ("Delay in Treatment") in a case concerning intravenous (IV) infiltration. In this case, the nurses had inserted the IV catheter through a vein, not into it, thus running IV fluids and drugs directly into the surrounding tissue and severely damaging it. The time line showed the key facts over a six-hour period and emphasized the theme of the case: the dangers of a long delay in treatment. (6)
The plaintiffs claimed not only that caregivers identified the infiltration late, but also that nurses failed to notify the treating physician. The time line showed 7:30 a.m. as the time that infiltration occurred. Nurse A claimed that she discontinued the IV when she noticed the infiltration at 8:30 a.m. Nurse B claimed that she discontinued the IV at 9:45 a.m. The records also established that the treating physician, Doctor C, was not notified of the infiltration until 12:30 p.m. and that he did not start treatment until 1:30 p.m.
The time line on p. 48 ("20 Minute Time Difference") addressed a complicated factual discrepancy in an anesthesia malpractice case. (7) The patient was found pulseless about an hour and a half into a routine shoulder arthroscopy. Despite cardiopulmonary resuscitation and other resuscitative efforts, the patient eventually died. The plaintiffs sued both the anesthesia department and its certified registered nurse anesthetist (CRNA) for failing to properly ventilate a sedated patient.
The anesthesia record showed that the anesthesia monitoring machines recorded no vital signs for 20 minutes before caregivers began resuscitation. After obtaining the computerized memory strip from the machines, our firm also found that the internal clock from the computer's memory and the clock in the operating room were not synchronized.
Aligning the memory-strip time line and the anesthesia-record time line confirmed that 16 minutes had passed between the patient's last heartbeat and the beginning of resuscitation efforts by caregivers. This graphic depiction of the subjective anesthesia-record time line and the computer's objective evidence showed that the CRNA had ignored a nearly 20-minute crisis.
With this evidence, experts were able to explain the defendants' clear negligence, and jurors could see at a glance that a man who went in for a simple shoulder surgery had been literally ignored to death on the operating table.
Anatomical models and medical exhibits
Medical atlases provide ready anatomical images, and the Internet is an ever-expanding source of medical information and free digital files. Using a simple Google image search, lawyers can find accurate drawings of basic anatomy and complicated procedures, including open reductions (to repair broken bones), laminectomies, and laparoscopic operations. When enlarging an anatomical image or artist rendering, lawyers can manipulate colors to create emphasis as needed. Nevertheless, lawyers should be conscious of copyright laws and be aware that using some images may require written permission or payment of a licensing fee.
Visual presenters, including those called ELMO or DOAR, use small, mounted cameras that project onto a computer monitor or large screen. Such presenters can be enhanced with specialized equipment as needed.
For example, at trial in a case involving the misdiagnosis of breast cancer, we used a visual presenter connected to the eyepiece of a powerful microscope with an internal camera. The camera focused on biopsied tissue samples--only microns thick and the diameter of a pea--that a pathologist would see through the microscope and projected them onto a 60-inch screen. Using these live video images of pathology slides, the plaintiff's experts were able to show what the defendant pathologist would have seen and thus allowed jurors to "see" through the eyepiece. The images were much more compelling than simple enlarged photos of slides could ever be. (8)
Videotape and closed-circuit video
Demonstrative presentations by video can include depositions, day-in-the-life presentations, eyewitness statements, television news reports, surgical procedures, and home movies of family events or dying loved ones.
A witness can explain videotape as it is viewed or after it is shown. For some videotapes that contain an audio track, such as home movies and videos of births, audio may raise hearsay objections, but it is generally helpful for jurors to hear as well as see what has been filmed.
Videotape can remind jurors of key events or facts better than simple explanations. For example, a lawyer may offer at trial a two-hour video deposition that then becomes a part of the record. During closing argument, a one-minute excerpt of a key question and answer can remind the jury of a single, critical point that the examiner or cross-examiner made. Using video during argument breaks up the presentation and provides jurors with different sensory input. Because of its conciseness and clarity, the excerpt reinforces in jurors' minds the full-length deposition.
Closed-circuit video can display a victim's injuries effectively. Most states protect the plaintiff's fundamental right to exhibit his or her injuries to a jury, but many plaintiffs find it difficult to talk about them. Jurors, too, may feel uncomfortable hearing about the plaintiff's pain, and they may find it difficult to focus on the testimony. When available at trial, a closed-circuit demonstration can provide some essential psychic distance between the witness and the jurors.
For example, in a case concerning a brain-damaged baby, the treating pediatrician examined the child in the judge's chamber for basic neurological impairments while the demonstration was displayed through closed-circuit television to jurors in the courtroom. Such a demonstration can be taped for the record on appeal. Because the defendants are present and the witness is available for cross-examination at the time of the exam, there is no hearsay barrier.
In this case, the jury could see the doctor's demonstration of impairment, rather than just hear his explanation. The doctor entered the courtroom and took the stand immediately after completing the exam and explained to the jurors what they had just seen. (9)
Because video rarely is shot during the events at issue in a medical negligence case, animation re-creates them so they can be shown to the jury. No other medium gives jurors such a precise picture of what happened inside the plaintiff's body.
A medical expert can work with an animator to explain the medical principles and facts of the case so that both the outside and inside of a living human body can be depicted accurately. In an obstetrical negligence case our firm handled, for instance, pitocin was used to accelerate labor despite continuous uterine contractions. The uterus became hyperstimulated, and the resulting stress limited the oxygen reaching the baby, causing a brain injury.
To illustrate this, we created a cutaway view of the uterus on a computer screen to show the fetus inside, with the fetal monitor strip superimposed and running in real time at the bottom. A running clock and key facts in sequence appeared in the upper right of the screen. (10)
As the uterus became hyperstimulated, both the strip and the animation showed the compression of the fetus. We used color to show how placental circulation was impaired as a result, changing from a healthy red to an anoxic blue. The animation effectively showed how uterine hyperstimulation caused the baby to be oxygen-deprived before he was delivered.
Trial presentation software such as Trial Director and Sanction--as well as PowerPoint--can incorporate almost any exhibit into a trial, whether it's a chart, graph, X-ray, time line, storyboard, video, or other graphic image. These programs impart a professional look to demonstrative presentations, but flexibility is key. The lawyer must control the pace of the presentation, sharing the information in a clear and concise way so the jury is not overwhelmed.
Such software allows users to present evidence creatively. For example, conflicting video deposition testimony can be shown on a split screen. A single image can have two video clips from two deponents, left and right. Its title can be as simple as "What did the hospital know?" or "When was the doctor called?" For the latter, the deponent on the left might say "10 a.m." and then freeze, after which the deponent on the right says "1:30 p.m." Such juxtapositions make conflicts leap from the screen.
The software also allows the user to show video or play audio files at the same time text is displayed. For example, the lawyer can display, highlight, and write on a medical illustration while an expert testifies by video on the same screen.
As long as the principles of demonstrative persuasion are followed, these programs function like an artist's blank canvas. The lawyer should create text in uniform fonts and sizes and use templates for consistent colors and images so the means of delivery do not distract from the message.
Rules for persuasion
How people learn suggests general rules that can be applied to the creation of demonstrative presentations in medical negligence cases.
Keep it simple. Use simple pictures or symbols and as few words as necessary. Using recurring labels or rifles gives context. Restrict each slide or visual aid to a single thought.
Appeal to all the senses. While using color to convey meaning, use easy-to-see color combinations for emphasis. Be sure to include auditory cues (let the jury hear a decedent's voice, the sounds of a siren, or the beeping of monitoring machines) as well as aids that can be touched and manipulated (pass around an actual endotracheal tube, catheter, or back brace).
Pay attention to courtroom presentation. Always position demonstrations and projection screens for the jury's ease of viewing. Use large rear-screen projection televisions or liquid crystal display (LCD) projectors with a good presentation screen so your exhibits will be as large as possible. If using a standard television, be sure to check for glare. Also, place demonstrative aids in a position to help your expert teach the jury and place them to isolate opposing experts or counsel from the jury.
Don't let words or "visual noise" overwhelm your message. Keep text to six words per line in an exhibit, ensuring that it is simple and understandable and that the font size is large enough to be legible. Cut down visual noise by keeping the design simple and avoiding excessive or bright colors, changes in fonts, and overlays that obscure information. Charts, graphs, or time lines should demonstrate a single element. For example, the handwritten anesthesia record usually shows systolic and diastolic blood pressure values and heart rate on a single graph. In some cases, it may be necessary to create three different graphs so that jurors can get a clear view of each value.
Don't use too much of a good thing. Remember that trial is live theater, not a movie. Day-in-the-life videos are most effective when used with a live witness; the jury must connect with the witness, not the video. Do not use demonstrative evidence for the entire summation; rather, use slides to emphasize key areas and evidence. And don't feel bound to use every exhibit you created during case preparation. Examinations at trial can shift the emphasis of the case from some exhibits onto others, so remaining flexible is key.
Demonstrative presentations are powerful tools for communicating medical concepts and showing who did what, when, and why. But technology is only as good as the themes it illustrates. It will never substitute for a dedicated advocate who presents a compelling story, universal values, and genuine concern for the client.
(1.) DONALD E. VINSON, JURY PERSUASION: PSYCHOLOGICAL STRATEGIES AND TRIAL TECHNIQUES 184 (1993).
(2.) FREDRIC G. LEVIN, EFFECTIVE OPENING STATEMENTS 306-08 (1983).
(3.) RICHARD C. WAITES, COURTROOM PSYCHOLOGY AND TRIAL ADVOCACY [section] 12.02 (2003).
(4.) ATLA'S LITIGATING TORT CASES [section] 37:24 (Roxanne Barton Conlin & Gregory S. Cusimano eds., 2003) (updated July 2004).
(5.) Corona v. Weksler, No. 2001-CI-13026 (Tex., Bexar County Dist. Ct. settled Oct. 25, 2002).
(6.) Lewallen v. East Texas Med. Ctr., No. 40,798-A (Tex., Smith County Civ. Ct. settled July 12,1999).
(7.) Alexander v. Crowder, No. 98-05567 (Tex., Harris County Dist. Ct. Nov. 4, 1999), aff'd sub nom. Battaglia v. Alexander, 93 S.W.3d 132 (Tex. Ct. App. 2002).
(8.) Painter v. Gauthier, No. 01-24838 (Tex., Harris County Dist. Ct. June 26, 2002).
(9.) Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580, 585-86 (Tex. Ct. App. 1997).
(10.) King v. St. Luke's Episcopal Hosp., No. 2002-13077 (Tex., Harris County Dist. Ct. settled Mar. 26, 2004).
JIM M. PERDUE JR. is a partner with the Perdue Law Firm in Houston. The views expressed in this article are the author's and do not constitute an endorsement of any product by TRIAL or ATLA.
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|Author:||Perdue, Jim M., Jr.|
|Date:||May 1, 2005|
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