1. Use Demonstratives in Conjunction with Exhibits
Demonstratives are “big picture” tools. They help tell your client’s story. Exhibits, on the other hand, which are considered “real” or “substantive evidence” (evidence involving an actual thing in the case, such as a fact witness’s testimony or a medical record) give supporting details—they make your client’s story believable. Using demonstratives without exhibits, therefore, is pointless and can even create foundational issues. Remember that a foundation must be laid for the admissibility of demonstrative evidence in addition to the admissibility of substantive evidence. Using both of these together will increase your power of persuasion as an advocate and better serve your client.
An attorney representing a hip implant manufacturer, for example, can use an animation of a total hip arthroplasty in conjunction with the plaintiff’s medical records or X-rays. Doing so achieves two purposes: (1) It helps the jury understand the anatomy, and (2) it helps the jury understand the specific procedure performed by the treating physician and how the product was implanted. It is important that advocates not lose sight of the reality that the concepts at issue in medical drug and device cases are completely alien to most jurors. An ordinary juror will not have a detailed understanding of how the human anatomy works or how drugs travel through the body or how surgeries are performed. Your job, therefore, is to be the best teacher you can be and help the jury comprehend these concepts. Using animations is one effective way of accomplishing this goal. And—as an added bonus—studies show that jurors make decisions that are more consistent with the evidence when they are shown supporting animations.
2. Consider Using One or Two Demonstratives throughout Trial, Not Just in Your Opening and Closing Statements
Don’t lose sight of the fact that your ultimate goal in using demonstratives is to help tell your client’s story. Therefore, while it is important to use them prospectively (in your opening statement, to explain to the jury what the evidence will show) and retrospectively (in your closing statement, to summarize what the evidence has shown), it is equally important to use them throughout the trial—for example, when examining or cross-examining witnesses about key events or facts. You wouldn’t want to do this for each of your demonstratives, and in fact, if you tried, you’d likely face some pushback from the opposing side, but consider one or two demonstratives that would be particularly helpful to keep visible to the jury. This not only enhances your credibility as an advocate; it leaves a longer-lasting impression on the jury (jurors are more likely to remember something that they see more often). For example, blowing up or enlarging portions of medical records and keeping them on display while a witness is offering testimony increases the likelihood that the information exhibited is embedded in the minds of the jurors.
3. Use Your Demonstratives in Conjunction with Expert Testimony
For the lawyer defending a medical drug or device manufacturer who wants to defeat liability, visual aids must be used in conjunction with expert testimony regarding defect and causation. This is important for two reasons. First, in medical drug and device trials, the testimony of a qualified expert is necessary to prove, or disprove, that the defendant’s product caused the plaintiff’s injuries. And a visual demonstrative combined with this testimony will help the jury not only understand but also remember the expert’s opinion.
Second, attorneys in medical drug and device trials are often faced with a very challenging task: ensuring that the jury is not fooled or misled by the medical illustrations and photos of the plaintiff’s injuries that plaintiff’s counsel will most certainly show them. To equip jurors with the tools necessary to make reasoned, informed decisions—as opposed to decisions swayed by the emotions that unfavorable photos can often elicit—defense attorneys should consider using demonstratives to make their expert testimony more digestible and, ultimately, more persuasive.
4. Create a Demonstrative Highlighting Your Theme and Consider Enlarging It
Create a demonstrative that highlights your theme of the case. One way to do this is to take whatever piece of substantive evidence you think is most helpful to your case—whether it be the testimony of an expert, an operative report, or an X-ray—and find a way to demonstrate why this evidence defeats the piece of substantive evidence you think is best for the other side. If your demonstrative acknowledges and deals with the other side’s best evidence, you have not only gained credibility with the jury but also created a successful visual representation of why you win the case. Again, in drug and device cases, many themes will rely on complicated expert testimony that needs to be distilled into something the jury can understand.
Once you create a demonstrative that showcases your theme of the case, consider enlarging and mounting it onto a foam board. The benefit of doing this is that it ensures that what you view as key evidence is clearly seen by all jurors. To make an enlarged exhibit even more effective, you should circle or highlight key language or, if it’s a diagram or chart, for example, key portions, so that the point of the document or record is even clearer to the jury. Highlighting can be more effective than circling a portion of your record. Studies have shown that the use of colors can improve one’s ability to remember both words and pictures.
5. Consider Making One Demonstrative Interactive
Interactive demonstratives can often have more impact than a static image or still illustration because they take the visual learning process to an entirely new level. Imagine, for example, a defense attorney in a medical device case manipulating an interactive graphic such that—with the mere click of a mouse—the attorney can take the jury step by step through a surgical procedure, from start to finish. Perhaps the attorney can even manipulate different parts of the body, showing the jury how tissue and bone can interact with a medical device. This is not only more attention-grabbing to jurors—it also gives them a more “real-time” experience of what happened. It makes them more of a participant and less of a passive viewer. This is particularly important in light of studies that show that people are more engaged and focused when they are actively involved in something; that is, when they learn by doing. And juries in particular have been known to retain information better when it is communicated to them in interesting ways, such as through animations that tell a story or through games that they can take part in.
If defense attorneys do decide to incorporate interactive demonstratives in their trials, they shouldn’t just stop there. They should find new ways to make those demonstratives as persuasive as possible. For example, attorneys could give each juror an iPad, letting the jurors get up close and personal with the subject, manipulating and controlling it themselves. Attorneys in medical drug and device trials, where complex technical issues are much easier to understand in three dimensions, should work on convincing the court to try this new approach. Advocates should take advantage of every opportunity both to clearly distill these issues to juries and to engage the jury. Interactive graphics are a powerful way to do this. For example, attorneys could create an interactive experience to let jurors learn about how medical devices work by “playing” with a simulation version—a dialysis machine, hip replacement hardware, even the way a drug interacts with human cells.
David Sarno, president of Lighthaus Inc., which creates interactive, digital explanations in science, health care, and education, said this approach can change the traditionally passive nature of being a juror. “Just like video games,” Mr. Sarno said, “interactive demonstratives capture a user’s attention in a way few other media can. It’s the kind of engaging, digital interaction they’re used to with phones and games, but we’re using it to explain critical concepts in an interesting way.”
In sum, the use of demonstratives in medical drug and device trials can make for powerful tools of persuasion in the courtroom, if used effectively. Trial attorneys should consider applying the foregoing tips when using demonstratives, to increase their clients’ likelihood of success.