From Body Language to Computer Simulation
By Michael J. Maggiano, Esq.
It was a warm mid-spring afternoon, some 15 years ago. I had just finished a personal injury case and I was finally feeling the effects of the two-week trial. As I slowly packed up my message and story boards, medical charts and anatomical models, a well-known defense attorney and friend came up to me and asked me to do him a favor.
He told me that he was just assigned to this courtroom to commence a personal injury case in which he was defending. He had observed my use of the storyboards, charts and models and complemented me on them. He then told me that he was here on a significant case and was surprised that his adversary had not considered using any visual aids. He asked if I would, as soon as possible, remove my gear so as not to give his adversary any thoughts on the subject. I thought at first he was joking but upon a second look at his expression, I knew he was dead serious. He then remarked to me that he is ever surprised on how few Plaintiff attorneys utilize communication tools to tell the story of their case to jurors in ways that make sense to them.
We ALL Suffer from the Curse of Knowledge
We trial lawyers prepare like crazy looking for the best experts, researching and reading all the relevant literature, rules, codes, standards, guides and regulations. We comb the universe of knowledge as we arm ourselves like warriors as we enter the arena. We fall in love with our new found skills, knowledge and command of the scientific, technical and medical jargon. By the time we enter the court room we suffer The Curse of Knowledge.
We execute incredibly brilliant direct examinations of our experts and cross examination of the opposing hired witnesses. But then we lose the case. What happened? Didn’t they hear us? Sadly, they may have heard you but did not understand the message. The only persons who understood us were the lawyers, experts and perhaps the judge. We traveled through the case at Mach 2, high above the courtroom and beyond the comprehension of those who really matter – our jury.
If you want to talk to the jurors you have to first stand in their shoes.
To stand in their shoes we need to first remove our shoes. To remove our shoes we must understand our curse of knowledge. The medicine, the law and technology is easy for us because we have learned and lived with it for a couple of years before we get to court. No body should know your case better than you. But now, what do you do with the knowledge. How does it translate to what is relevant to your jurors?
You now have to find out what the jurors want to know. What is in it for them that will capture their interest and move them to your side of the room.
Q. WHAT IS IT THAT JURORS WANT TO KNOW?
A. The basic information that they need in order to do what they see as the morally right thing.
Focus on what is most important to your audience. Throw away your curse of knowledge and focus on the jurors by providing them the necessary information through messages that are acceptable to them based on their frame of reference and frame of acceptance.
Focus Group Your Case
Because you suffer the Curse of Knowledge you may have lost sight of what just regular folk want to know. There is nothing worse than structuring your theory of the case and your case themes around points that the jury will not see or care about. Conduct Focus Groups to find out what matters. Consider having an early focus group by having your facilitator give the audience a basic outline of the facts and Plaintiff and Defense Contentions.
Then ask a very open ended question: What else do you want to know? Once you hear from them and are able to answer their questions, then ask very simply:
- Tell us what you think.
- Tell us what you think about the plaintiff.
- What do you think about a witness.
- What do you think about a document or exhibit.
- What does it mean to you.
- What don’t you like about the case.
- What do you like.
- What would you want to tell the Plaintiff’s lawyer for him to win the case?
- What would you tell the Defense Lawyer for her to win the case?
The Landmine Statements and their Rebuttals
Once you have collected your Focus Group results then write out what you believe to be the 20 plus landmines of your case. A landmine is a statement of fact if believed by the jurors, will kill your case. Then proceed to create a rebuttal to each landmine statement. The Landmine statements and their Rebuttals must be simple statements uncluttered by compounding or complexity.
Next in this process create exhibits to answer each landmine and plan which will be used in Opening, which will be used by what witness or expert in direct, which for cross and what exhibits for Closing Argument. Now convene a second focus group and try out your case by giving a simple non partisan statement of the case. Tell who the witnesses are what they will expect to say. Go through your exhibits for comments and criticism as well. There is nothing worse than spending a small fortune in time, effort and money on a group of exhibits that don’t matter to your jurors.
I have found that this process has the best results when a collaborative effort is under taken by a fully experienced team that works well with each other and has an open mind. The team should include a trained consultant/facilitator highly experienced in Critical Thinking, Litigation Strategy and Communication Psychology. Your team must also include a talented graphic artist.
Everything you need to know, you learned by the second grade.
I think there should be a requirement for civil trial certification that each applicant spend a day visiting with his old second grade teacher. Do you remember her? She used maps and charts, constantly wrote on the black board.
- For geography, she used pictures of far off places.
- For history, when we talked about Abe Lincoln, she showed us union money and confederate money as a jumping off point to describe a nation divided.
- For science, there were all kinds of simple little experiments with jars and liquids and simple household items.
- For every national holiday, there was always the symbolic art project relating to it that gave the holiday dimension and meaning to us all.
How did we lawyers become so smart that we simply forgot so much? Years ago I came across an interesting poster that I just had to buy to hang up in my office entitled “All I Really Need to Know I Learned in Kindergarten: Uncommon Thoughts on Common Things” by Robert Fulghum. If you do not have it, buy it and look at it once a day.
Every point that your teacher made, if you will recall, had a visual hook that she utilized to grab and hold your attention and to help you understand the concept or information she wished to teach you during that class. The fine lady up there constantly at the blackboard knew that as much as ninety per cent (90%) of our knowledge comes from visual sensory impression. Just think back upon your life experience and you will recognize that it is these impressions that are the most memorable and lasting.
As Lawyers You Must Become the Guide & Teacher to the Jury
Just like any good teacher, words are not the only elements, we have to express ideas and communicate messages. Images can be very effective communicators, providing a shortcut to learning. In fact, most knowledge is learned visually, not audibly. Sixty per cent of your audience thinks in visual terms, and will remember up to six times more if you use pictures with words to tell your story. Don’t underestimate the value of a visual strategy. It is your most powerful communication tool.
The Spoken Word + Visual Word = Impact
We believe what we see. So much so that even when we convert words to the visual form, they come alive. Even placing on a blow-up or overhead projector important words set forth in a standard, statute, contract, or letter, and reading aloud at the same time makes the words themselves come alive in front of the jury. Moses did very well in deliver the Word in two clay tablets with ten easy to follow commandments. This simple approach has so much more impact than the mere cold reading of standards and rules to the jurors, most of whom will otherwise fade out in thirty seconds. But putting words in visual form creates incontrovertible evidence, which you can periodically through the trial and the presentation of other witnesses bring before the jurors again and again to enforce the message points contained in the blow-up, chart or message board.
Why do we simply read deposition testimony of the adverse party or an inculpatory interrogatory answer when we could blow up the damaging evidence and place it before the jury to “see and hear”, as we read it to them at the same time on a large board with an appropriate title to it? The mere stating of words, especially formal or complex ones give the jury an opportunity to drift off into la-la land. Our second grade teacher would have never done it that way. She would write it, spell it, say it out loud and even show a picture or scene along with the written word or sentence.
Your primary goal in the courtroom is to convince the jury that what you and your client say is true. When the point to be made is on a blow-up or an overhead or on the black board, clearly and simply stating one point, one piece of information at a time, it becomes objective and real. It has a special veracity that the spoken word can never have alone.
But Don’t Show Too Much
Once we as lawyers catch on to the need for visual aid, we often tend to go to the other extreme and overload our new toys with too much information. Jurors’ eyes jump all over the place, trying to make sense of everything and not really listening to you. Therefore, it is important that you control the visual media and bring it forth in the courtroom in bite-size pieces, logically moving in one piece at a time, just as much as the witness or you could explain at a time before the next bit of visual evidence is introduced thereby enhancing the prior piece as well as building up the current testimony. If you leave a Filling Defect, you allow the jurors to fill in that missed piece of information with their own. They will be off writing their own story, not yours.
Each time you add a point by show and tell, you enhance the jury’s interest to follow further in your case as you connect the dots. You challenge their curiosity and enable them to stay active and move along through the case with you.
Therefore, it is important to make sure that your visuals are clear and self-evident. That each does not show too much and makes one point in a way that is acceptable to most jurors factually and morally. That each fact/point is shown no sooner than the testimony that goes with it and gives it meaning within the context of the case.
Falling in Love with Our Creations Even When They Are Bad
Sometimes as we develop our cases and create our demonstrative evidence, we tend to fall in love with our creations, forgetting whether they make the point to the listener or not. The hardest thing for us to do is to dump an exhibit that misses the mark. Because we created it, we tend to want to use it, whether it works or not in the courtroom. Before you use an exhibit in the courtroom, try it out on your mock jurors, family, staff or colleagues and see if the point is made. As for you, the old adage of “you can’t see the forest from the trees” invariably applies. If your exhibit does not work on your test jurors, do not take the chance of using it in the courtroom, no matter how much time or money you spent on it.
A Bergen County Superior Court judge told me of a medical malpractice case he presided over a year ago where the Plaintiff was wheeled into court and sat quietly in his wheel chair each day of the trial, his physical form and countenance made, a rather compelling portrayal of a wrecked life; very sympathetic in appearance. Then, came the day his attorney showed the day in the life film of the Plaintiff which surprisingly showed how well the Plaintiff did exercises and physical therapy and got through his day, better than one would have anticipated by just looking at him in the courtroom. The videotape sent a more vivid and clearly contradictory message than was being portrayed by the Plaintiff’s appearance in the courtroom. No one can judge all of the reasons why but a defense verdict was rendered by the jury. The trial judge told me that he did not have the foggiest idea as to why the Plaintiff’s attorney who had spent approximately $50,000.00 on the trial of the case had decided to proceed in showing this “Day in the Life” film. All too many times the best laid plans of mice and men go awry. According to the trial judge and his clerk, the Plaintiff’s attorney should have first gone through a day in the life with his Plaintiff before bringing in professional video people and then evaluated what he saw against what he saw of his Plaintiff in a wheel chair. The Plaintiff by his own appearance and body language made a far more compelling statement than the video on the issue of damages. I would bet anything that what the Plaintiff’s attorney never brought out was that the Plaintiff, a proud young man, put on a show for the camera doing his best to look good and was totally exhausted after the taping. Not conveying this stoicism through witness testimony at trial, the tape contradicted the Plaintiff’s courtroom appearance.
Reinforcement and Anchoring
Remember the old saying “Use it three times and it’s yours”. Well, the same holds true for exhibits. Reinforcement is a key-teaching technique in jury trials. Once the jury has received an exhibit, it must be brought back at appropriate times to remind them of your point or theme, which is enhanced and developed on each follow-up presentation during the course of the trial.
Whenever it is logical and possible, each important point in your case and each important point to be made by a witness should have a visual presentation keyed to it; so to for the liability or damages theme – because things we can see have higher credibility. Concepts and facts are persuasively anchored to the juror’s memory when presented in conjunction with a visual medium, thus, all essential information presented by any witness should be reinforced and anchored by a visual display.
For example, a verbal description of how a motor vehicle collision took place should be supported during the description at the appropriate times by (a) photographs of the scene, (b) photographs of the vehicles involved depicting the damage, (c) a diagram drawn by the Plaintiff or eyewitness of the accident location and (d) where appropriate, a visual recreation of the incident by computer simulation. All of the above are used by various key witnesses in your liability mosaic such as the investigating police officer, eye witness, co-workers and accident reconstruction expert, as the case may be.
With regard to visual aids and physical evidence, we must understand what is evidence, i.e. real or physical evidence and what are demonstrative visual aids in the courtroom. This becomes important because the demonstrative aids do not get into the jury room but the real evidence does. These matters, however, we must save for our next seminar on Trial Evidence.
Now that we agree on the importance of demonstrative evidence when used correctly, let’s focus on the psychology of demonstrative evidence.
The Neuropsychology of Demonstrative Evidence
We, human beings, are quite a curious lot. Our antennas are always up, and we are constantly scanning our environment and are ever-stimulated by it. We have learned from the neuropsychologists that vision is an active exploratory process. Think about it, when you are walking into a lecture hall, your eyes scan the room. You begin to immediately make decisions as to whether you are going to have a good day or not. You enter a restaurant for dinner, you immediately begin to make all kinds of decisions as to where you want to sit, what view you would like, who you would want to sit next to and who you do not want to sit next to or whether you want to be at that restaurant at all. Clients make all kinds of decisions about the type and quality of the lawyer they are about to see, just based on how they are received and what the reception room is like. We cannot stop ourselves. We are constantly making decisions about people, places and things based on what we see. That is why I believe that you should not show a chart, blow-up or model before you are ready to give the explanation.
In one instant, the human eye may contain over two (2) billion bits of information. The eye movement known as saccadic movement causes information to shift between and among individual cells. This receptive ability is compounded by the rapid shifting of stimuli within the retina itself. Because we scan the objects that we look at, our gaze is fixed for only a few tenths of a second on any visual field. A natural compensatory method of potential stimulation overload is the subjective manner in which human beings actively pick and choose from among the overwhelming visual information they confront and focus on that which they choose to, or, not to focus at all. Think about walking down a busy city street during rush hour. Who do you “see”? Hardly anyone.
The neuropsychologists have taught us that vision is not objective, in that, we all do not focus on seeing the same thing. It is not merely a physiological experience. Studies in human perception have shown that it is actually a subjective experience. When we look at something, its impact on us has to do with our pre-existing knowledge base, which itself affects how we find and focus on an identified object in a visual scene.
The juror’s knowledge base consists both of his formal learning experience as well as his attitudes and beliefs, all of which impacts on how he/she receives information in the courtroom. These attitudes and beliefs serve as a filter which only allows the jurors to “see” certain things but not others, and therefore, be persuaded by certain things and not others. It causes the juror to understand new information in terms with which she is familiar and to discard information which to that particular juror does not make sense. This is a failure to: see, seek, use and share all the information important to your case. The juror’s pre-existing attitudes, called pre-loads actually determine what images will attract her attention and therefore, what she actually “sees”.
Tune into your Jurors by Tuning into Radio station WIIFM
The communication experts have taught us that there is somewhat of a distinction between demonstrative evidence that is intended to be educational and explanatory and that which is to be used persuasively. The difference is based on WIIFM , the basic human motivator of What’s in it for me? If jurors fail to see the need to learn your case information, they will either ignore it, reject it, or fail to assimilate it in any meaningful way. For example in a medical negligence case or a toxic tort or a products liability case, an important scientific fact keyed into a liability issue or theme must be hooked by a clear simple exhibit which demonstrates the concept your expert must get across to the jury simply in order for them to accept your theory of the case. If you were to only rely on the expert’s testimony, many jurors may not grasp the concept, some may latch on to it but interpret it differently than intended and others may totally misunderstand the concept and apply what your expert is saying against you.
Thus, an exhibit board should be created which focuses the juror’s visual attention and emotional WIIFM, at the time of testimony but narrowing their perceptual fields, rather than allowing the juror’s pre-existing attitudes to dictate what they think of when they hear your expert. You will get a sense of the WIIFM issues from your Focus Groups. Mindful now of your juror WIIFM, you should create an exhibit that conveys the message you want in very simple and clear terms. The lawyer should choose a simple visual image that effectively communicates a difficult verbal idea.
Thus, the basic rules in creating a persuasive demonstrative exhibit are as follows when the purpose is educational or explanatory: (1) the exhibit must convey a clear and unambiguous message; focus only on what is most important (2) the visual message must provide meaning rather quickly as it is simultaneously coupled with the verbal explanation; (3) the lawyer or witness must direct the juror’s attention to the visual display and simultaneously provide the verbal explanation.
The exhibit must be simple and straight-forward without presenting an overwhelming amount of information at one time, especially in the medical malpractice, products and toxic tort cases. If the information is too complex the jurors will become confused instantly. As a result they will ignore or reject your evidence. The jurors will either tune out or consider only part of your message, witness testimony, evidential presentations and exhibits. The lawyer then has no control as to which part of the testimony and exhibit the jurors will attend to.
The critical problem (especially with regard to a demonstrative exhibit) that the lawyer at all times and especially with regard to a demonstrative exhibit must deal with is that the juror’s attention is focused where it needs to be for effective communication of the message. There should be no distractions and the exhibit itself should contain no ambiguous elements or eye-catching effects that are not directly related to the message.
A visual aid by itself is not likely to be retained in memory without an explanation and verbal cues. The use of verbal cues is important in presenting a visual aid, in that, by a single word or phrase repeated several times in reference to the exhibit, it has meaning. In order to imbed the information in the juror’s memory more persuasively, verbal cues are necessary.
Creating the Exhibit.
Not only must you consider what your exhibit shows but also, what it says. If there is any text type in the exhibit, you have to recognize that the choice of the text and type font may enhance a juror’s understanding. Serifs and Roman type are easier to read than line-type or sounds serifs. Any running text should be in the lower case letters, rather than all capitals. Using all capitals significantly reduces reading speed. The text itself on an exhibit should be at least about five (5) times larger than the text in a book. Optimum line lengths should be about 40 characters.
The Visual Center of an Exhibit.
Psychologists tell us that because seeing is subjective rather than objective, when jurors view a demonstrative exhibit, they tend to focus on the upper one third (1/3) of the exhibit initially and primarily, at the upper left quadrant before looking at the rest of the exhibit. For this reason, titles and summaries of well-designed exhibits are typically placed in the upper left-hand corner where possible. In medical illustrations of operative procedures, the critical information should be located within these zones.
Charts are not admitted directly as evidence but can be used as exhibits once their authenticity has been verified.
Charts are often an effective means of displaying pieces of information together and in summary form. For example, a time line graphical chart of a physician’s course of treatment would be most helpful to the jury in a case involving a bone fracture with undiagnosed infection over a period of months, so as to demonstrate to the jury when the Plaintiff did see the physician, what his complaints were on each visit. In cases involving standards of care and the Defendant’s violation of them, all can be brought into focus by the use of a chart, showing on one side the accepted standards and on the opposite side under a heading captioned, “Failures”, how the physician failed to conform to those standards.
In the appropriate case, where there are periods of hospitalizations, disability, various types of medical care, a calendar chart makes an impressive summary that capsulates to the jury the intensity of the treatment and how the Plaintiff’s day to day living has been turned upside down. Over a number of days or weeks of trial testimony, the jury will have difficulty in absorbing the complex medical/surgical history and is always left with not the particular facts of the case, but their impressions of the facts. Pain and suffering chronologies and treatment chronologies are helpful to utilize during the testimony of the Plaintiff and the various physicians involved and works well in conjunction with other testimony and demonstrative exhibits in your case, including the Day in the Life film. Another type of calendar that has been effectively utilized is the Quality of Life calendar, which shows through a color chart all the types of activities the Plaintiff enjoyed and engaged in on a weekly basis before his injury and that which he was left with following the disabling injury sustained.
There are many variations to these charts and exhibits. The basic ingredient is your creativity in applying these persuasive tools to the facts of your particular case in appropriate form.
The use of removable transparent overlays are of great assistance in the sequential storytelling approach of how a collision took place or how an injury healed or caused deterioration over time.
Charts are typically used during closing argument to itemize special and general damages and to total up the amount of damages demanded. For this type of chart like all others, you should present it well in advance of the time you intend to use it with a supporting legal memorandum on why you are entitled to use it in the manner in which you intend.
Presently, the most popular colors in the order of preference remain as blue, red and yellow. That does not mean that you must do an exhibit in these colors or use a lot of one of these colors in an exhibit. Like-ability of a color is only one aspect to be considered in designing your exhibit. A high contrast color is more likely to attract the juror’s attention to the exhibit and therefore, the most important elements of the exhibit should have the brightest colors and the highest contrast. High contrast colors are white, yellow and green. Adding too many colors to your exhibit is distracting. No more than four or five colors should be used. Also, the wrong combination of colors will reduce the impact of the message or even send the wrong message. For example, red is a very popular color because it has such emotional impact; however, its impact on individuals is not predictable. An attorney representing the defendant in a criminal case should never use red because of its association with violence, crime and blood. As an aside, you should never have your Plaintiff in a personal injury case wear red because of the unpredictability of its impact on jurors. In both criminal defense and personal injury cases, your client should wear soothing colors such as a light blue, beige or a pastel. Black is generally considered a little too harsh. In a criminal case, yellow should be avoided in the preparation of the exhibit, not only because it is hard to read but because yellow is associated with caution or a penalty flag.
Color coding your exhibits creates visual cues. Your color code can be utilized throughout the trial to create a unity to the visual exhibits. For example, if the jury is shown a number of exhibit boards regarding treatment and you have used blue dots on the calendar exhibits to show dates of treatment by your TMJ specialists, your demonstrative evidence then during his testimony should have a blue border to it, both as to his medical illustrations and his testimony and a chart reflecting his testimony regarding costs of prior, present and future care. Another example of anchoring by color coding is to exhibit all your positive evidence within a green border and all negative evidence against the opposition in a black or red border.
A well-known example of a consistent grid that has created a frame of reference is the red color framing of the cover of “Time” magazine. This grid has so successfully anchored the cover that even without lettering, the public recognizes it.
The most important thing to remember is that color coding can be successfully used to anchor exhibits but do not change the color pattern or the grid. If you anchor the visuals consistently, you have taken another step toward psychologically increasing predictability and reducing uncertainty in the course of your trial, thereby making the jurors more comfortable with your exhibits. And once the jurors identify with the exhibits on the subconscious level, the credibility level of the exhibits increase.
Using your Demonstrative Aids as Teaching Tools.
We can see that all crucial information presented by any witness should be reinforced and anchored by using a visual display. The use of demonstrative aids by the expert witness is absolutely essential. The expert witness can use the visual aid to come off the witness stand and put himself in a teaching position, thereby lending credibility to what he has to say on a subliminal level. Without question, the expert witness must be consulted during the preparation phase regarding the kinds of models, charts or overheads to be used and when and how they will be used. In preparation of your witness for testimony, the demonstrative evidence must be used so that your expert becomes comfortable with it.
The major advantage of using the blackboard or big flip pad on easel, as opposed to other visual aids such as the overhead projector or charts is that the blackboard or drawing pad on the subliminal level is identified with the teacher figure. In the eyes of many jurors when either you or your expert take chalk or colored marker in hand and begin to communicate via the blackboard or pad, the unconscious mind of the juror views you as a teacher. Teachers, they know, can be trusted, therefore, the use of the blackboard probably will increase your level of credibility. However, this advantage is limited by your penmanship, speed of writing and any awkwardness in writing and speaking at the same time. Also, you must be wary of the disruptive adversary who will attempt to erase the facts and figures and thereby the thoughts conveyed with them. I prefer the pad over the chalk board for this and other reasons. However to avoid this, you can simply bring in your own portable blackboard and ask for an in limine ruling that what you or your expert write on your blackboards are not to be touched or modified by your adversary, who should agree to use his own or that provided by the court. Some may find the use of the Smart Board an effective tool of creating and preserving diagrams and exhibits created by experts during trial.
In the vivid verbal portrayal of an injury, especially what the doctor saw upon first examination or in the emergency room, a picture indeed is worth a thousand words. Effective use of the medical illustrator is important in such cases. In one such case based on the emergency room doctor’s description of the fracture and the bone piercing through the skin, the Plaintiff’s physician had an illustrator depict the injury graphically during this acute phase. At trial, the physician testified that the illustration was an accurate depiction of what he, in fact, saw. Based on his testimony, the medical illustration was admitted into evidence.
Persuasively Presenting the Learned Treatise.
In many jurisdictions permitting the use of a Learned Treatise in direct examination as support for a standard of care, we have now an excellent opportunity to demonstrate the rightness of our case by way of support of our proposition in the written word, namely, the Learned Treatise. In federal cases, the use of overhead projections of authoritative treatises is specifically authorized and can be very important and very effective. Likewise, for example under N.J. Evidence Rule 803 (c) (18) statements from authoritative treatises supporting expert testimony are admissible, in that the witness can quote from the treatise; however, the text may not be introduced to the jury as an exhibit. Therefore, the only way to reinforce visually what the jury is hearing from the expert, is to have the expert read from the article while it is projected on a screen or enlarged and displayed on an exhibit board for the jury to read as the expert reads aloud the pertinent statement. This approach is far more effective than having the expert hold the article in front of him on the witness stand and simply read it to the jury. Rather, you should have the expert directly in front of the jurors and read the literature, as it comes across the overhead screen or as the exhibit board is displayed.
I believe in the use of a multi-media presentation. When it comes to the question of blow-ups, I believe that all real evidence such as photographs, x-rays, documentary evidence, should be blown up (photographs of the family or the Plaintiff pre-accident should not be). They form a permanent exhibit which the jury can take into the jury room. They also can be easily used with subsequent witnesses and on cross-examination. The major disadvantage, however, is that they are cumbersome and too many blow-ups in the courtroom create a clumsy appearance as you move through the testimony.
Therefore, when dealing with a quantity of exhibits, consider the use of an overhead generally, or photographing each exhibit onto a disc and displayed on a large screen. This is especially helpful during summation when referring to a number of exhibits. The four or five crucial exhibits, should always be blown up, so that they are permanent and easily available.
Blow-ups should be used particularly in cases involving any serious damage so as to present key pieces of evidence to the jury persuasively. This also includes statements from medical textbooks, which clearly set out a standard of care. Blow-ups of heavily damaged automobiles, roadways, and scenes of the disaster can be very persuasive when enlarged and properly packaged and exhibited at the appropriate times during your trial. An excellent technique especially for impeachment evidence is to type out on your word processor inculpatory statements in an admissible document such as deposition transcript or a hospital chart and then blow up your 8 x 11 page to poster size with the inculpatory language displayed in the upper third portion of your blow-up and the actual page of the chart posted below it and to the left, and then place an appropriate colored border around the information, so that the eye focuses on the inculpatory language and there is verification of its source from the hospital record or deposition page right on the blow-up itself.
Where you have objective results revealed on a diagnostic test such as an MRI or a C-Scan, you certainly want to anchor your physician’s diagnosis with the showing of the films during the course of his testimony. However, in many instances, when you simply look at the films, it is only the doctor who can tell what is depicted. In determining what films to blow up for demonstrative purposes at trial, I follow the “ouch” test. If members of my staff say “ouch” when they look at the film, it’s worth blowing up. Otherwise, if the film is of significance, then a medical illustrator is necessary to develop an overlay graphically showing the linear fracture, dislocation, disc bulge or herniation or whatever the case may be as the eye would see it. In the case where you do have a significant fracture, it is important to blow up the pre-reduction film and the post-reduction film and at the time of your physician’s testimony, also have the actual hardware available. Where appropriate, a medical illustration should be used, particularly, if there are subsequent surgical interventions changing screws, pins and demonstrating the cutting away of post-surgical calcium growths, for example, in order to have a persuasive pictorial chronology of the evolving injury and residuals.
The point that should be made here is that you must closely analyze your real evidence that demonstrates the diagnoses made and injuries sustained. You then must determine how they will be best presented through the persuasive layering of testimony and demonstrative evidence, so that you have a pictorial history illustrating the condition from the day of injury, post-operatively and current. One approach that I do not see undertaken too often, but should be when you have a positive EMG and/or Nerve Conduction Study, is to blow up the report and graphic display report and have your neurologist explain the significance of his findings as documented on it. In those cases where the EMG findings are your only objective evidence of injury, particularly where an MRI is negative, I believe it is important to anchor the jury’s attention to these findings by using the blow-up of the EMG and nerve conduction study report as a visual aid. Through the creative use of the physician’s testimony in explaining the study in conjunction with anatomical charts showing the peripheral nerves and nerve roots involved, you can bring the visual aid to life, as the doctor describes that the MRI, which was negative is merely a structural study and that the EMG is, in fact, a functional study. During the presentation, your expert should give a vivid example from common life experience which brings home the point with an image all can relate to: “For example, you can look at a new car and it looks great structurally but when you turn on the engine and go to drive it, it just does not function well. It is the EMG and nerve conduction studies that test to see how well the nerves are functioning and where the dysfunction is located”.
Overhead Projections and the ELMO
I think the use of the modern high lumen projector and elmo machine is far more effective than a carousel slide show. Anytime you turn down the lights in your courtroom, you run the risk of everyone, including the Judge, nodding off on you. With regard to the use of the elmo you bring to the courtroom the familiar overhead projector from classroom days but with advanced technology,. you may demonstrate evidence, whether it be a pathologist’s slide reduced to photographic form, medical illustrations, x-rays, important pages of a Learned Treatise, trial or deposition testimony and answers to interrogatories. The visual presenter or elmo and the overhead projector are used much in the same way, except that the overhead projector lends itself more easily to convey the written word on a large screen, whereas the elmo machine has more flexible capabilities with regard to x-ray, C-Scan and MRI films color photographs, anatomical charts and pathology slides. This flexibility coupled with the zoom, focus and lighting devices makes the visual presenter a handy tool in the appropriate cases. If you have the money, man power, courtroom and of course the case warranting the cost, consider large flat screen TV monitors. The clarity is excellent even in a well lit courtroom and the presentation is in a format all are comfortable with; TV.
Demonstrative Video-tape Evidence
Initially, movie films were used by the defense as early as the 1940’s, taken surreptitiously of the Plaintiff to contradict or minimize the trial testimony regarding the extent of the injuries and disabilities sustained. Videotapes have now become a regular tool of the Plaintiff’s bar for the presentation of day in the life films, reenactments, reconstructions and de Bene Esse testimony. The purpose of this paper is not to discuss the substantive issues involved in the presentation of such evidence and/or demonstrative aids. It is for another date and seminar to discuss the admissibility of demonstrative exhibits that are relevant, accurately represent what they purport to show and whose value is more probative than prejudicial.
To my mind, we in the Plaintiff’s bar, still underutilize video presentations. When we look at an aspect of our case, we should ask ourselves always what is the purpose of this testimony, what must I prove, how do I prove it persuasively. Our purpose always is to Persuasively Communicate the facts of the case to the trier of the facts. We do want an honest and accurate communication, but the most persuasive one possible within the rules regarding admissibility.
On what issue is the demonstrative aid relevant? How will it help the jury to understand the case and the particular testimony being presented? And if it is both relevant and aids in the understanding of the jurors, will it in any way unfairly prejudice the opposing side? All of these factors must be strongly considered, I submit, when we look at video evidence because of the sheer power of it.
Studies have shown that the television is on in most American family homes approximately seven (7) hours per day. It is the greatest source of daily information for most Americans. The tube has become a very familiar and accepted way for us to receive information. From buying laundry detergents to electing Presidents, the TV plays a great and persuasive role. And here is an unnerving thought our current generation of jurors have been raised on daily doses of MTV.
Is the projection of video evidence any different from viewing photographic evidence? Isn’t video nothing more than a series of photographs in motion? And isn’t it now the most familiar way to visually communicate and indeed the best form of communication we now have? As long as there is a witness who will testify under oath that the relevant video evidence is a fair and accurate portrayal of what it purports to show, I submit that there is no distinction between it and similar forms of evidence. In terms of reliability, it could be the most reliable of all forms of evidence you have when there is a need to visualize information in order to enhance juror understanding.
The whole purpose of this paper is to encourage the trial lawyer to think visually in the development of his trial presentation. Therefore, as you think through the concepts and strategies you wish to use, visualize in your mind how an effective tool of communication, such as video evidence, could be utilized. What follows is just a few examples I have given, just to get your thought processes going. I believe that the use of all demonstrative evidence is only limited by the creativity of the trial attorney within the parameters of the substantive law.
In a recent case, I developed my own reconstruction of an auto accident on the issue of perception of a road hazard and visibility of warning lights. The case involved a young man who was travelling as a passenger in a tow truck operated by his brother. While travelling a local roadway, they came upon an elderly gentleman whose vehicle had become disabled and pulled off to the curb. My client’s brother pulled his tow truck along the curb and then in front of the disabled vehicle, backed it up to the vehicle. He then turned on his overheads and strobes and began to investigate what was going on under the hood. They attempted to cable the battery and jump-start the vehicle, but it did not turn over. While they were in-between the tow truck and the disabled vehicle, the Defendant, driving a car came up the roadway and crashed into the rear of the disabled vehicle, namely, a 1979 brown Volare, smashing it into the Plaintiff and crushing his legs between the rear of the tow truck and the Volare. The defense contended that the vehicles were stopped in a “no parking” area, dimly lit, late at night, and with the hood of the brown Volare up, while its tail lights were obviously not on, inadequate warning was provided and the Defendant could not see the strobe lights or overheads that were blocked by the raised hood of the Volare.
Most of us would agree that this did not appear to be terribly strong defense testimony. However, my fear was of getting one or two jurors who do not drive and do not go out at night and worst of all, have never seen a tow truck with its lights on at night. Even an assessment of ten per cent comparative negligence would cost my client $60,000.00. Therefore, assuming the worst, I went about my video project. I found and purchased a disabled 1979 red Volare and had it painted brown. I then found a tow truck of the same make, size and color as the one the Plaintiff’s brother was operating, with all the same lights. I then proceeded to rent the identical vehicle the Defendant was driving. I then obtained the permission of the local police department to set up the vehicles in the roadway at the site of the accident scene, as they were at the time of the collision and requested the presence of the investigating police officer and eyewitnesses to verify the reenactment, including the vehicle positions, area lighting, weather conditions and the lights in use on the tow truck. I had three video cameras running, as the vehicles were being put in position and had the investigating police officer and eyewitnesses appear and describe on camera that the conditions were the same as on the night of the incident. Once we established the similarity of conditions and vehicles, I then, on video, asked the police officer if he would be good enough to drive the white Geo up the street to the accident scene in the same way and at the same speed as testified to by the Defendant in his deposition. Armed with video cameras in the vehicle, one focused on the speedometer and one focusing through the windshield with the third positioned at the site videotaping our approach, the investigating officer proceeded up the roadway as the Defendant had on the night of the accident. The first pass made it abundantly clear that the Defendant would have to be “blind as a bat”, to quote one of the eyewitnesses, not to see the tow truck and disabled vehicle.
Of course, under our case law, I gave adequate notice to the defense of our video reenactment of the scene and informed him of his opportunity to conduct his own videotape at that time. For whatever reason, defense counsel did not appear. A copy of the video was immediately mailed to the defense inviting him to review it and question further the eyewitnesses and the police officer, all of whom were provided with copies of it to verify the videotape’s accuracy. The defense stipulated to liability shortly after receiving the tape and I proceeded to trial on damages only. I did use blow ups of the police accident scene photos at the damage trial.
Consider the use of videotape evidence to help prove liability in an industrial accident case involving an operator’s hand being pulled into a printing machine, for example, by preparing two videos – one showing how the press operates and the second video demonstrating how it failed.
In a recent de Bene Esse video of an eyewitness who was not going to be available at trial, we staged an inexpensive but persuasive reenactment by having the eyewitness on video draw the intersection on a big pad with a marker indicating streets, signage and traffic lights, then taking two models cars, identifying one as that of the Plaintiff and the other as that of Defendant and upon questioning, established the approach of each vehicle, their positioning at the time of impact and the movement of each vehicle to their respective points of rest following the impact. The witness took the model representing plaintiff’s car and moved it into the intersection that he had drawn. He then, as he verbally described what he was doing, took the other model representing the defendant’s car and moved that into the intersection showing how it “crashed” into the plaintiff’s car. He then showed how the plaintiff’s car was pushed across the roadway and into the traffic light stanchion he had drawn in his diagram and how the Defendant’s vehicle deflected off of the Plaintiff’s car and came to rest up the roadway on the other side of the street. This was a moderate injury case and the cost of a computer simulation at $600.00 per second was not cost warranted.
Again, as said earlier, the limits of video presentation are really set by our own creativity and willingness to spend time with this medium. Consider the difficulty in convincing the jury as to the value of traumatically inflicted chronic double vision. The Plaintiff looks and acts normal and has no outward signs of disability. His physician will describe the injury and what caused it. The Plaintiff himself will describe the effect of the injury and how he can no longer do many of the things he routinely did before. I think most of us would agree that if the jury believed the evidence and gave the Plaintiff a verdict, it is more likely than not, particularly in the current environment, that the award would be for less than the case is really worth. I believe that in terms of any pain and suffering award this would be the result simply because the jurors would have difficulty comprehending the seriousness of the injury.
Consider the use of a video presentation to change all of that. A jury can intelligently decide what an injury is worth only if they understand it. What better way to help them understand than by actually showing them what it is like to see with double vision. Under the direction of the treating ophthalmologist, the video technician can create a precise and accurate representation of seeing the surrounding environment as a person with double vision sees it. Such a videotape need be no longer than a few minutes and I believe that’s about all the time that most judges would give you anyway. Of course, you have to give your adversary due notice of its creation and provide a copy upon request for analysis by the opposing expert.
Now, what if the Plaintiff in this case was a secretary. It would not take much more than a few scenes depicting the keys of a typewriter and a telephone dial to convince the jury that the Plaintiff could no longer do her job as she was trained to do.
As another example, let us assume that your client is a right-handed tennis instructor, who suffered a crush injury causing a fractured thumb and is left with a slight angulation and limitation in mobility. Other than this, he has no visible signs of disability. However, in many swings of his racket, it literally flies from his hand. Without the benefit of video technology, it would be difficult for most jurors to understand the manner and method of grip utilized during tennis. You can present a tennis pro through testimony while demonstrating videographically the different ways in which a racket is held and the purposes for each. The treating physician can then describe the nature and extent of the injury, the Plaintiff’s limitations and how he cannot hold the racket, as is depicted in the video illustration. A split screen close-up could show proper hand grips on the left and the plaintiff’s attempts at those same grips on the right. The possibilities are limitless. Consider a video to demonstrate the disability sustained by a horse trainer, a physical therapist, a gymnast, a dancer, a model, even a mechanic or a plumber.
The Generation Y Experience: Computer-dependent Recreations
A computer-dependent re-creation is similar to an animation in some respects but significantly different in others. A re-creation illustrates an expert’s opinion of the positions of moving objects over time. Typically, that opinion is relevant to the cause of a plane, car or train crash. The end product is an animated portrayal of objects moving through space – for example, illustrating the expert’s opinion of what the pilot saw through the cockpit window during the last three minutes of flight. In this respect, a re-creation is similar to an animation.
In a re-creation, however, the computer becomes more than just a sophisticated sketch pad. It also takes information about the location of certain objects at the relevant times, processes it according to the formulas programmed into its form-and-motion software, and independently plots the relative paths taken by all relevant objects throughout the pertinent time period.
Re-creations depend on the computer because of the enormous number of calculations required to determine the relative position of each object over time. For example, to reconstruct the last three minutes before a plane crash while attempting a landing at an airport, the graphic artist/computer operator first must “build” the relevant “world” into the computer. That world includes the plane, the tower, the crash site, and probably other objects as well.
Next, the information about the position of the plane throughout these three minutes is entered into the computer. In a typical air-crash case, this data comes from a black box carried by commercial airliners that records flight information, such as the altitude of the plane and its speed, heading, and acceleration. With this information the computer calculates the location of the aircraft, the tower, and the crash site throughout the three-minute period using sophisticated form-and-motion software. With these calculations, the computer can present the events from various points of view. For example, as the plane approaches the airport, both the tower and the crash site would appear larger to someone in the cockpit. To display the events accurately, the computer must keep track of each object depicted, relative to all the other objects, throughout the three minutes. Such an exhibit could not be prepared without computer assistance. It is truly computer-dependent.
The advantages of re-creations are enormous. As with animations, once the created “world” is drawn and the information processed, the observer’s point of view from within the world can be changed at will. The accident can be shown just as the expert believes it looked to not only the pilot but, for example, someone in the tower or someone standing next to the runway. The action can also be shown in either real time or slow motion. Finally, if a voice recorder was recovered, any conversation among the cockpit crew can be played concurrently with the re-creation, making the expert’s opinion even more lifelike.
Computer animations, on the other hand, are nothing more than a series of charts presented at high speed; therefore, the foundation for their admission should be the same as for the admission of a demonstrative chart that explains an expert’s testimony: (1) the testimony on the issues depicted in the animation must be admissible under the substantive rules of evidence, (2) the witness must be familiar with the animation, (3) the animation must fairly and accurately reflect the testimony of the witness on those issues, and (4) the animation must aid the trier of fact in understanding or evaluating the witness’ testimony.
There are two elements that are foundationally irrelevant. First, as a condition to its use at trial, there is no more need for testimony from the computer operator – graphic artist, who prepares an animation than there is for testimony from the person who prepares a chart. Second, there is no requirement that any image on either a chart or an animation used for demonstrative purposes be drawn precisely to scale: it simply must substantially reflect the underlying testimony.
Re-creations are more complex than animations and raise more complex questions of admissibility, in part because of their very “life-like” qualities; they do not appear to be demonstrative. Although such re-creations may seem conclusive on liability, they are, in fact, only a demonstrative exhibit. Properly viewed, the re-creation is a video illustrating the testimony of an expert. The expert in this case is the person whose computer software produces the video image based on the information retrieved and analyzed by the expert. The video tape just illustrates the programmer’s opinion of the validity of the programs’ application of the laws of physics and of the programs graphic rendering into accurate two-dimensional images.
Many of the ideas, concepts and techniques that I have discussed in this paper are still evolving. Many are being used by trial lawyers on an increasing basis. I have attempted to give you a broad spectrum of the possible uses of communication tools in the courtroom. Many of those uses are well within the financial reach and ability of most lawyers. “Show and Tell” works. Isn’t it time you tried it? Just remember to connect the dots. Try out your Exhibits on just plain folk. As my friend Rodney would say, Drill Down. Assume Nothing. Good Luck in your next trial.