Creative Demonstrative Evidence for Under $100 in Personal Injury Cases

By DOUGLAS K. SHEFF

It has been said that the difference between a good trial lawyer and a great one is the proper presentation of demonstrative evidence.

Many competent trial attorneys are able to elicit testimony and argue in a convincing manner, but the real trick is to show your case.

Furthermore, demonstrative evidence doesn’t need to be expensive or complex. Photos and documents can be duplicated at low cost. The expense of a camcorder will be recouped at the conclusion of the first case where video is used.

The only limit to availability of inexpensive, persuasive demonstrative evidence is counsel’s imagination.

Why Demonstrative Evidence Works

It keeps the jury from falling asleep . Today’s jurors have shortened attention spans. They’re trained to watch TV and they want and expect to be entertained.I don’t let more than 20 minutes pass without using some kind of visual aid. To establish a constant even flow of demonstrative evidence, one should consider timing for admission when planning the order of presenting witnesses. It makes evidence more understandable . One photograph or diagram can sum up days of complex testimony at a glance. It improves juror recollection of evidence or testimony . Countless scientific studies have confirmed juror recall of details is far greater when a visual image can be associated with it; and if it becomes an actual trial exhibit, it may be sent into the jury room during deliberation.

Demonstrative Evidence Of Liability

The presentation of demonstrative evidence to prove liability can be simple. Have your client draw a diagram of the scene of the accident during her testimony. A witness statement can be enlarged and published for the jury during cross-examination.

Distance, depth or obstruction may be a central issue in a motor vehicle, train or plane accident case, and can be shown via photograph.

A products liability case may be strengthened by showing a video of the product in use, especially where inappropriate guarding and/or moving parts are the essence of the allegations.

Like photos, videotape is admissible if it is a “fair and accurate” representation of the events depicted. Szeliga v. General Motors Corp., 728 F.2d 566 (1st Cir. 1984); Welch v. Keene Corp., 31 Mass. App. Ct. 157 (1991). See United States v. Richardson, 562 F.2d 476 (7th Cir. 1977); FRCP 1008.

Safer alternative products of a similar nature can be displayed in design defect cases. In medical malpractice cases, an enlargement of a tissue slide, in combination with competent expert testimony, can be devastating.

It is perfectly appropriate to use opposing counsel’s responsive discovery as evidence at trial. G.L.c. 231, Sect. 89;MacPherson v. Boston Edison Co., 336 Mass. 94 (1957) (Answers to Interrogatories); Rheaume v. Patterson, 289 F.2d 611 (1961); Certain Underwriters v. Hawthorne Flying Service, 63 So.2d 308 (1953).

This is becoming more common as personal-injury attorneys have sought to “paper each other to death.” While the discovery stage can be frustrating, creative use of a page from an opposing party’s interrogatory answers or a deposition can be extremely effective at trial.

Don’t forget that most public governmental agency reports and records are admissible. See e.g., Suburban Land Co. v. Town of Billerica, 314 Mass. 184 (1943); F.R.C.P. 803(8). Many such records include demonstrative aids and charts such as those produced by the National Highway and Traffic Safety Counsel, the Consumer Product Safety Counsel, and the Occupational Safety and Health Administration (OSHA). Best of all, they’re free of charge.

In an automobile case, a common defense is that the subject trauma was not significant enough for the injuries alleged. This is particularly damaging to a plaintiff’s case where there is a pre-existing injury. A photo of damage to the vehicle involved is often an excellent way to demonstrate impact, and, therefore, trauma.

But if these are either unavailable or unimpressive, don’t give up. You can measure and film a skid mark, an indicator of speed, or even submit a repair bill from an auto mechanic, which may demonstrate to the jury that there was significant impact.

Demonstrative Evidence Of Physical Damages

Nothing establishes damages in tort cases like demonstrative evidence. X-rays reveal broken bones. MRIs or CT scans show herniated discs or soft tissue injuries. Each can be enlarged and made into a “positive” for easy observation.

In cases where damages are otherwise difficult to show, MRIs and CT scans should be shown in a series of films to document gradual tissue degeneration. In these cases, incorporate a sample normal film or test in expert testimony for comparison. None of these exhibits are expensive to create.

A model or diagram of a particular body part is generally admissible if “anatomically correct.” Expert doctors always seem more authoritative when “teaching” medicine to the jury with these tools.

Models are especially effective in cases that involve injuries affecting articulation of a joint or other moving parts within the human body.

Some evidence regarding damages can also establish liability. For example, an emergency room record noting bruises or marks on an auto accident victim’s abdomen can show she wore a seatbelt at the time of the accident.

Evidentiary Issues

Most medical records and films are easily admissible. Naturally, one needs to lay a proper foundation. Many states have statutes that allow for the admission of medical records without a records keeper present. With a keeper, a business records litany should be employed.

Films such as X-rays, CT scans and MRIs are often the most effective evidence of damages in a personal-injury case. In part, this is true due to the fact that they are visual. But, perhaps more importantly, this type of evidence is objective and scientifically sound. There’s no need to rely on someone’s impression, opinion or best memory. Films don’t lie.

To avoid objections and ensure admissibility regarding films, remember to establish the following with the plaintiff’s treating physician or medical expert at trial wherever applicable:

The films were taken under the doctor’s supervision;
The films were sent directly to the doctor from the pertinent medical facility (no break in chain);
The doctor used the films for actual diagnosis/treatment, or, in the case of a non-treating doctor, for forming his opinions regarding condition/prognosis;
The film is properly labeled with a seal that includes the patient’s name, date, etc.;
The film is consistent with the subject’s condition and symptoms;
The film is consistent with observations made during surgery; and
The film is consistent with records already in evidence.

Where films are not helpful or don’t exist, sometimes medical charts from authoritative medical treatises can be persuasive. You can find these in medical libraries or even on the Internet. The cost of duplication and enlargement is minimal.

Always look for ways to add a visual element to medical testimony to ensure interest and impact.

Demonstrative Evidence of Economic Damages

Once medical damages are established, there is a basis to prove economic loss. This can be done with or without an economist.

Visual evidence typically includes a summary of lost earnings and benefits, both past and future, based upon the plaintiff’s work life and life expectancies. With a proper foundation, these charts or summaries are admissible. Barnes Group, Inc. v. C&C Prods., Inc., 716 F.2d 1023 (4th Cir. 1983).

Without an economist, most judges will at least take judicial notice of work life and life expectancy, as these are facts that “form part of the common knowledge of every person of ordinary understanding and intelligence.” See, Turcott v. DeWitt, 332 Mass. 160 (1955). Granville-Smith v. Granville-Smith, 349 U.S. 1 (1955).

The use of demonstrative evidence to show economic loss allows counsel to display a large total loss figure accompanied by its basis on one exhibit. It allows the jury to recall figures during deliberation, which might otherwise be forgotten or de-emphasized.

It also allows counsel to use substantial figures included in the summaries to “springboard” into an argument for damages far in excess of those involving economic loss.

Because roughly 85 percent of jurors decide essentially how they will vote during the opening statement, it can be extremely advantageous to use visual evidence at this critical stage.

Show opposing counsel your exhibit, and inform the court as well. Moreover, be absolutely certain that the exhibit will become a trial exhibit, or you will risk a mistrial.

Finally, anticipate opposition to the visual exhibits.

Stipulate to as much as possible prior to trial, and when that fails, make sure all discovery and pretrial memoranda are properly supplemented.

Take care to lay a detailed foundation, including chain of custody, accuracy and/or reliability. When all else fails, ask that the witnesses be allowed to refer to the exhibit as a “chaulk.” It won’t wind up in the jury room, but some visual presentation is better than none at all.

Douglas K. Sheff practices law in Boston. He is president of the Massachusetts Academy of Trial Attorneys.