21st CENTURY DEMONSTRATIVE EVIDENCE-TODAY
Step into the future. Your trials, mediations, arbitrations and even settlement conferences will all benefit. Demonstrative evidence can be the key.
In today's courtroom, the power of demonstrative evidence is almost universally recognized. We all (at least) think about using charts, poster boards, photographic enlargements and the like. Technology offers more, however; much more, including computer graphics, remote control, large-screen display, opaque projection, and visual presenters. To appreciate when and how to use these new tools, we should first explore the practical side of demonstrative evidence.
I. DEMONSTRATIVE EVIDENCE: PURPOSE AND PERSUASION
To be effective, demonstrative evidence must grab and hold the attention of those deciding the facts, whether they be jurors,1 judges, mediators, arbitrators or just your opponents at settlement conferences. This can be done best by appealing to as many human senses as possible. At a minimum, try to capture understanding with both sight and sound. Practically, however, start with visualization.
In every case, there is a concept that is critical to your success. In product liability actions, for example, it may be a defect in the product, or how that defect caused injury. As a result, in deciding what demonstrative evidence can most help, you must visualize how the product failed and how it caused injury. Then you can begin to consider what demonstrative evidence would best bring that visualization into the hearts and minds of those you must convince.
Let's get specific. Your client was severely burned when his vehicle was struck in the rear by a postal truck. Your experts are convinced that a bolt under his vehicle was manufactured defectively with a piercing edge that cut through his gas tank, causing the fire. The defense charges that any vehicle could go on fire if smashed in the rear at high speed by a large truck.
Critical to your presentation is driving home that, absent the sharp-edged bolt dangerously located near the gas tank, there would have been no fire. One option: you could have your experts run vehicle crashes with and without the bolt in place and video the results for playback to the jury. Such tests, however, run the risk of failure, and could cost tens of thousands of dollars, if not more. The other option is to let the jury witness the event through computer graphics or visual presentation of sequenced photographs showing how, where and why the bolt caused the tank failure. Your demonstrative evidence would emphasize how the rest of the fuel tank stayed together rather than split apart, and how, absent the defective bolt, crushed metal would have been the only result of this traffic collision; seat belts, head restraints and airbags would have precluded serious orthopedic injuries.
The question then is how best to do this: Enter the modern world of demonstrative evidence.
II. THE MODERN ARSENAL
Begin with what your jury knows. For many, the television screen is their telescope to the outside world of new concepts and entertaining descriptions. Twenty-first century demonstrative evidence takes full advantage of this fact.
The key, then, is visual communication. People may only remember a small portion of what they hear (perhaps 10 percent), but usually retain a much larger portion (as much as 70 percent) of what they see and hear.2 In addition, visual communication reduces confusion and improves understanding; and studies have shown that groups that share information usually tend to arrive at consensus faster. What else then could you want, except maybe some way to control the costs associated with demonstrative presentations. Cost control, however, is a bonus associated with many of the new technologies described below. In many instances, they enable trial lawyers to prepare and present evidence in-house with few if any incremental costs.
One such system, known as the Communicator, is marketed by DOAR Communications, Inc. of Valley Stream, New York. The Communicator is a truly versatile tool comprised of a camera on a standing arm pointed at a base where documents, x-rays, objects, photographs and more can be projected on a TV or large screen. In addition to letting you visually present all forms of physical evidence, it can combine computer text and graphics with the video display.
But there is more. Zooming-in is a key capability of this device, allowing jurors to focus on the key elements of your case. This zoom capability allows you to control the visual experience of the jury by focusing on just those elements important to your expert or witness.
Returning to our example of the exploding fuel tank case, the Communicator can be used to enlarge your expert's photograph of the chassis underneath the car. Then you can focus past all the confusing leaf springs, shock absorbers, axles and pipes directly to the defective bolt that pierced the tank. Better yet, you can focus even further to the sharp edge of that bolt, making the image overpower the television screen and so emphasize the very heart of your case. With this quick, easy and inexpensive presentation, you can almost be sure that your message is not missed.
Another device, however, called the "StudioVision" lets you go further. StudioVision works in conjunction with the Communicator and gives you the ability to highlight, underline and circle critical evidence (such as the bolt in question) right in front of the jury. The StudioVision allows you to do all this easily with a tablet and wireless pen. Using the same device, you can create split-screen effects, side-by-side comparison of before-and-after photos, and "picture-in-picture" depictions (such as highlighted deposition testimony overlaid by the actual video of the testifying witness).
Of course, other advantages of using equipment such as the Communicator and StudioVision are a marked reduction in the time needed to present your case, and (perhaps more importantly) an inherent ability to control and dominate the courtroom with your version of the evidence. This same equipment, however, can be used earlier in the case at mediation or settlement conferences. In fact, this equipment literally empowers you at every stage of litigation: it can be set up by you alone; it can be operated by you alone; it requires little or no pre-production cost; and it is limited only by your own creativity and purpose.
Go further. You can even advance the art using this equipment. Use it to preserve evidence, produce video depositions, and create video settlement brochures. For example, where it is difficult to obtain documents, photographs or x-rays from an organization or hospital, you can bring this system with a VCR into the records room and record the material with the voice-over of your expert. You can even highlight the evidence the expert is referring to on the system in a separate box (picture-in-picture) or side-by-side on the TV screen. Depositions become more effective and even entertaining. Finally, you can easily use existing documents, photographs and other material to create simple yet effective settlement tapes with appropriate voice-over by an expert, witness, the client or yourself.
One failing of these modern devices in court, however, is the transitory nature of the television or projected images. Now you see it; now you don't. What is left for the jury to review days or weeks after the presentation, when they are deliberating the issues?
Another device, the Visual Image Printer,3 goes a long way toward solving this problem. The Visual Image Printer allows instant printing of any highlighted, annotated, zoom-in, picture-in-picture, or side-by-side presentation created with use of the other equipment described above. In that way, you can offer jurors, for example, any presented evidence in hard-copy format for review during deliberations. The Visual Image Printer can capture frames from any videotape, computer, or Communicator presentation for use during other parts of the trial, evidentiary hearings, jury deliberations and (God forbid) appeals.
All of the above techniques use video technology and the television medium to present evidence. As mentioned, the benefit of this approach is relative simplicity and low cost. A full discussion, however, of demonstrative evidence in the new "electronic trial" environment must include reference to computer imaging, computer disc (CD) ROM (read-only memory) technology and similar capabilities.
Computers are ideal storage-and-retrieval systems. Typically, they can complement the video/television presentations described earlier. For example, we can scan as many documents, photos, videos and other images into the computer as desired, and even produce a customized CD ROM of the images. Technology has even progressed to where motion video can be displayed on the computer screen, and with the correct hardware configuration, images, pages of testimony and videos can be recalled using bar-code technology. Once displayed, these systems allow you to zoom in to emphasize portions of an image, and to annotate and highlight an area of interest, similar to the video/television devices described earlier. The three big challenges, however, to widespread computer imaging in the courtroom are: (1) cost/availability of equipment; (2) the "learning curve" required for attorneys and others to use the related computer software and hardware in real-time in front of the jury; and (3) the logistics of scanning and indexing the proper images. Once mastered, however, your options appear limitless; software, for example, exists to provide interactive merging of documents, text, graphics, video and sound.
As mentioned, the major drawback to computer imaging is cost, although prices continue to drop as related equipment becomes more and more available. In the meantime, other less expensive options exist. DOAR Communications, for example, offers a low-cost alternative to CD ROM technology. The Disk Partner is a device that lets you store up to 250 images on a single disk, as recorded from your computer, the Communicator (described earlier) or a VCR, and then display them through remote control or randomly with a simple bar-code reader. The Disk Partner can also keep up to 25 separate "witness lists" of evidence organized for various witnesses from the same set of images on a disk. Alternative products, like Disk Partner, offer modern capabilities now at relatively low cost and reduced complexity.
Face it, the age of the electronic trial is upon us. On the plus side: our ability to communicate-the mainstay of our profession-has never been better. On the flip side: we all must stay abreast of rapidly-changing technology. Knowing and using these twenty-first century tools, however, is becoming more than an option; it is becoming a reality-for us all.
- Raymond Paul Johnson
|| For a more extensive discussion of demonstrative evidence in the trial setting, see R. Johnson and M. Eidson, Defective Product: Evidence to Verdict (1995 Michie Company), Chapter 7. |
|| The author conveys a special thanks here to Samuel H. Solomon, President of DOAR Communications, Inc., 743 West Merrick Road, Valley Stream, New York 11580-4826 (telephone 516-285-1100, fax 516-285-1145), for sharing his technical insight and providing detailed suggestions used throughout this text. |
|| The Visual Image Printer is another state-of-the-art demonstrative evidence device made available through DOAR Communications, Inc.|