Litigator’s Playbook: Demonstrative Evidence – Bridging the Gap between Boredom and Engagement

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

Using demonstrative evidence has always been an important way for trial lawyers to highlight their point(s) or help contradict the opposing side’s story. Whether the demonstrative aid consists of words or pictures or is the actual object that you want to bring into evidence, now, more than ever, the use of demonstrative evidence must take into consideration the ways technology has influenced our lives.

Although “patience” may still be a virtue, people are becoming more easily frustrated when something does not happen quickly and are less likely to “stick with it” when they do not understand something quickly. “Fast food restaurants” and “drive thru’s” are considered slow if there is a line inside or out and Internet servers are slow if it takes more than a few seconds to load a page. TV remotes or DVRs are becoming necessities so we can change channels when we do not want to watch commercials or to help us move between different shows when we want to watch more than one. DVRs allow us to watch what we want to watch regardless of when the program was scheduled to be seen.

And yet – walking into a courtroom is like walking backwards in time. Our trials continue to rely primarily on the spoken word. As our jurors get younger, this phenomenon – the difference between our need for speed and immediacy to stay engaged versus the more methodical, sometimes plodding, nature of trials – makes keeping jurors engaged and willing to learn a more difficult task.

Using demonstrative aids can bridge the gap! But only if used well and only if you understand how people learn.

1. Only use what you know:
Having the best, most advanced equipment will not serve you well if you do not know how to use it and use it quickly. Trying to get your program on the screen while fumbling around or being unable to get the image loaded swiftly is, today, similar to the disheveled attorney unable to find anything in his files. The more often you fumble, the more you lose their interest and their good will. Practice ahead of time!

2. Better to have help than to fumble:
Many attorneys want to show they are technologically savvy when using technology. Others do not want jurors to think their client has the funds to hire “extra” help. Often and unexpectedly something can go wrong. If you want to be the one who starts and stops your DVD illustration or manages your PowerPoint presentation, then take time before trial to learn its quirks! Make sure your courtroom is adequately equipped for your devices. If you do not have the time, let somebody else be in charge of that aspect of your trial. Jurors will not hold it against your client. Having someone else there can, in fact, work to your benefit, especially with older jurors, when you explain, perhaps through a question in voir dire, or even in your opening, that you are technologically inept and need help.

3. Jurors know how to multi-task. Do you know how to control your exhibits?
You must “control” your demonstration. Your PowerPoint presentation should not have everything you want to say written on it. Limit its words – let the words shown be topic headings, not the entire paragraph. Too many words on paper or on a screen get boring. You or your witness should add explanations or go into more depth about what it says or shows on screen.

Jurors can look at a slide or map or illustration of a body part or curve in a road while listening to you or your witness talk, but essential to most effectively getting your point across is when you can draw jurors’ attention back to what you or your witness are saying.

4. What’s the best kind of demonstrative evidence to use?
Some attorneys believe that the side with the most modern technology wins, while others do not want jurors to think their client is wealthy, and for that reason, prefer to use flipcharts or go to a whiteboard and write. I have found that there is no “better”! Much more important than its price tag or look is the comfort level of the attorney using it.

5. How to highlight or illustrate a point:
We bring demonstrative evidence into a courtroom to bring some “life” into the words of our case. Use color, use different fonts and when sound is involved, use different tones and volumes to get your jurors engaged. If you are using a simulation, make sure that you know how to discuss it. Ask out loud in the courtroom, the same questions you asked when your demonstrative aid was first demonstrated to you.

Finally, if you are using photographs make sure to have copies that jurors can take back into the jury room. For PowerPoints or illustrations from other technological equipment, find out if there is a way to get an important piece made into something that jurors can hold and look at during deliberations. Remember, when jurors see something on a screen for only a moment, they are less likely to call it to mind without something to aid them, something for them to see and/or touch, during deliberations.

Jeri Kagel, M.Ed., J.D., is the president and principal trial consultant for Trial Synergy, LLC. Ms. Kagel has her M.Ed. in counseling psychology from Georgia State University and her J.D. from Northeastern University.