Wise Use of Demonstrative Evidence Can Be Decisive
But Innovations Often Underused Or Misused
By MARK A. COHEN
The effective use of demonstrative evidence can be crucial to achieving a successful result at trial or in negotiating a settlement — but Massachusetts lawyers too often underused such evidence or do not use it to its full advantage, according to trial attorneys and judges.
“Lawyers in every case should be using demonstrative evidence,” advised Boston Lawyer Douglas K. Sheff, adding that he tries to employ such exhibits every 10 to 15 minutes during a trial.
“Properly used, demonstrative evidence can be an invaluable tool in proving a case to a jury,” agreed Boston lawyer Edwin L. Wallace, president-elect of the Massachusetts Academy of Trial Attorneys. “It can be more effective in showing something than anything I could say.”
Superior Court Judge James F. McHugh told Lawyers Weekly that demonstrative evidence is “underused” by lawyers.“There are a lot of things that lawyers could do to better communicate the evidence, including photos, videos, charts and diagrams,” McHugh said. “It’s a powerful way to communicate.”
And demonstrative evidence isn’t just for plaintiffs’ attorneys.
“Demonstrative evidence can be useful to both sides,” noted Worcester attorney Paul P. O’Connor, vice president of the Massachusetts Defense Lawyers Association. “It can aid to make things as clear as possible to the finder of fact.”
Attorneys indicated that demonstrative evidence can:
- present “day-to-day” images of an injured plaintiff’s life through the use of video;
- depict surroundings during the critical moment when an accident occurred; and
- embolden the impact of deposition testimony through enlargement of documents.
Complex Cases
It is most crucial to use demonstrative evidence in cases involving complicated factual scenarios — such as medical-malpractice and products-liability cases, Sheff said.
However, the use of these exhibits is becoming increasingly common for accident reconstructions in simple auto torts, he noted.
Although visual exhibits are often necessary to “bring home” crucial facts to a jury, some lawyers remain reluctant to use them, according to Sheff.
“Some lawyers assume that demonstrative evidence has to be expensive,” he observed. “But that is a mistake. It can be as simple a photograph. With a little thought and imagination, there are all kinds of demonstrative evidence available at low costs.”
“It doesn’t have to exotic,” agreed McHugh. “It can be as simple as a map or a calendar to mark off days.”
And the best demonstrative evidence in a case often comes from the opponent, according to Sheff.
“Schematics, blue prints, answers to interrogatories — all of these can be made into demonstrative evidence,” he stated.
“We emphasize `bad paper’ from the other side [in selecting demonstrative evidence],” plaintiffs’ lawyer Alan L. Cantor of Boston noted. “For example, we blow up deposition testimony [from their witnesses] that will help us.”
“I find that using an overhead projector to show [a witness’s] inconsistent statements in a [prior] deposition is a particularly effective technique,” stated attorney Ned C. Lofton of Boston. “And the jury remembers it better because it both sees and hears the testimony.”
Evidence Or `Chalk’?
Lawyers must decide whether they want to use demonstrative evidence simply to help clarify an expert’s testimony or whether they want it to go with the jury to the jury room as an exhibit admitted in evidence.
Generally, demonstrative evidence will be admitted in evidence if the evidence on which it is based is admitted, Sheff observed.
“Getting it to the jury room is the tough part,” he said.
Lofton observed that “some judges let demonstrative [exhibits] into evidence and some don’t. It depends upon the judge. Some judges look at [such evidence] negatively and just want to move the trial along without having a bunch of exhibits.” In a given case, it might be particularly helpful to have jurors handling a key exhibit as they deliberate, Sheff said.
However, “lawyers should avoid allowing certain kinds of demonstrative evidence in the jury room,” advised Boston lawyer David W. White-Lief.
“You don’t want to give the jury things that it can experiment with,” he explained. “It is said that if anything can go wrong at trial, it will. It would be `Murphy’s law’ times three to allow the jury to experiment with [demonstrative evidence in the jury room].”
“Usually, when you talk about demonstrative evidence, you’re using it as a chalk,” O’Connor stated, noting that a “chalk” refers to exhibits marked only for identification which do not come into evidence.
Another decision that a trial lawyer must make is whether to use demonstrative evidence in making the opening statement.
Sheff said that it is good for a lawyer to use demonstrative evidence in an opening statement, so long as he is sure the evidence will be admitted at trial.
“Never use something in the opening that you are not 100 percent sure will come in at trial,” Wallace cautioned. “If I use it and it doesn’t come in — that will be a mistrial.”
Several practitioners advised that the judge be informed before an attempt to use a demonstrative exhibit — particularly if it is to be done during the opening statement.
Damage Issues
Demonstrative evidence can be used not only to describe difficult causation issues, but also to elucidate the issue of damages, lawyers said.
For example, a demonstrative exhibit can be used to break down for a jury the amount of a plaintiff’s economic damages, observed Wallace. This is particularly important in Massachusetts where plaintiffs are not allowed to give juries a suggested dollar value for their claims, he said.
White-Lief said he also likes to show a plaintiff’s damages using demonstrative evidence.
“You want to get things to the jury that they can multiply to come up with damages,” he stated.
One technique Sheff sometimes uses to increase the value of a settlement is to present a video of an injured tort plaintiff’s day-to-day activities as part of a settlement “brochure.”
The brochure will also contain a comprehensive analysis of the liabilities, and a criticism of any defenses, he noted.
Enlarging Recoveries
Plaintiffs’ lawyers credited demonstrative evidence as helping to bring about a number of successful endings to cases.
Sheff — when representing a driver who drove his vehicle into a 20-foot trench — was worried that the jury would not be able to understand how the accident could have happened without the driver being negligent.
“I went out, got on a car roof and filmed [the accident scene],” he said. “What I found was that at the time of day [that the accident occurred] shadows hung over the trench in such a way that it was difficult to separate the trench from the shadows.”
The case ultimately settled for a substantial sum, Sheff noted.
Boston attorney Edward M. Swartz, with Cantor as co-counsel, represented the family of a boy who was found drowned in a pool in their suit against the pool manufacturer.
The plaintiffs claimed the boy had climbed in using the above-ground pool’s defectively designed filter. The manufacturer claimed the child had scaled the pool’s wall and that no defect was responsible for his death.
Swartz and Cantor took photos of a child-sized mannequin next to the pool to show that the boy could not possibly have scaled the wall. The stratagem worked; the manufacturer settled the case for $4 million.
In a case that settled for $6.5 million last week, Swartz and Cantor again prepared an exhibit using a mannequin.
The plaintiffs were the family of a child who was strangled to death after becoming wrapped up in a “mini-hammock,” which was later the subject of a nationwide recall.
Plaintiffs’ counsel constructed a portable model of the hammock suspended between two mounted poles to bring into court. They planned to use a mannequin the size of the victim to assist an expert in explaining how the accident occurred.
“We didn’t want people to think it was just a freak accident,” Cantor said in explaining the intended use of the model. “Children were strangled by these hammocks 15 times before they were recalled.”
Jeffrey A. Newman of Boston explained that he created a “mini-documentary” on video as a negotiating tool while representing a woman who claimed she had been raped at a fraternity party.
The videotape contained interviews with witnesses and views of certain written materials, according to Newman, and was a valuable asset in settling the case.
Moderation Urged
Despite the potential of demonstrative evidence to improve a case, lawyers must be careful not to overuse such exhibits, White-Lief warned.
“It’s a balance,” he said. “You don’t want to present so much demonstrative evidence that it loses its effectiveness.”
“You have to have good stuff for the jury to look at, but not so much that they tune it out,” Cantor agreed.
Good demonstrative evidence should not be used in place of good discovery work, he said.
“There is no downside if it is done the correct way,” Cantor said. “You can’t just use bells and whistles. You have to do the spade work during discovery.”
“What lawyers ought to do is to look at their case and see what demonstrative aids might make it more understandable to a jury,” McHugh stated. “But they should also not overdue it by putting on more gimmicks than the case warrants. You don’t want the jury to think that [the case] is a selling game.”
Used incorrectly, demonstrative evidence can become a lawyers’ biggest nightmare, O’Connor observed.
As an example, O’Connor noted that he recently represented a defendant in a case in which the plaintiff’s medical condition was at issue. The plaintiff’s expert bolstered his testimony by constantly referring to a full-color diagram illustrating a medical problem that was put on display in front of the jury.
The only problem was that the medical condition on the diagram was not the same condition suffered by the plaintiff.
“We tore the expert apart on cross by getting him to admit the diagram illustrated another condition,” he said. “Demonstrative evidence doesn’t always work out the way you would like.”
