It’s the fifth day of trial, and the novelty has definitely worn off. Your expert is on the stand, methodically slogging through the minutiae of your case, but, frankly, nobody seems very excited about it. The testimony has been reduced to a series of spreadsheets, now projected on PowerPoint, but half of the jury isn’t even looking at the screen. The case hinges on this testimony, but it’s the middle of the afternoon, and the jurors seem confused. Or listless. Or just tuned out. And it was wholly avoidable.
Had you spent a little more of your prep time thinking about demonstrative exhibits, your expert might be out of his chair, holding the jurors on the edges of their seats. Unlike the substantive exhibits, which you necessarily take as you find them, your demonstrative exhibits can be tailored to clarify or amplify the most interesting aspects of your case. A good demonstrative exhibit can add kinetic energy and color to highlight testimony that would otherwise be static, undifferentiated, or unapproachable.
Once you’ve covered the obvious evidentiary constraints, there are few limitations on demonstrative exhibit design aside from your own creativity.
Using Demonstrative Exhibits to Activate Hard-Wired Cognitive Responses
From kindergarten, we’ve been conditioned to sit up and pay attention during show and tell—dutifully passing around and examining the trinkets of childhood. On the evening news, even the most complex stories are presented as two-minute soundbites with accompanying graphics and a helpful chart or map. On social media, the meme reigns supreme, representing—or misrepresenting—complex issues with a line or two of text and a single powerful graphic. The point being that a picture is worth a thousand words. And a physical model, which your witnesses and perhaps even the jury can handle, is worth a thousand bland PowerPoint spreadsheets.
In 1963, McGraw-Hill published the Weiss-McGrath Report, looking at how people absorb and communicate technical information. The study also compared memory retention across three different modes of data presentation: (1) orally only; (2) visually only; and (3) visually and orally together. After 72 hours, the group that heard the oral presentation retained a mere 10 percent of the material. The visual cohort retained twice as much—topping off at 20 percent retention. But the third group, which received both oral and visual information, retained a whopping 65 percent of the material, fully three days later. It’s a powerful cognitive dynamic, hard-wired into every juror, that a well-crafted demonstrative exhibit can harness to your advantage.
Getting Demonstrative Exhibits Admitted
Of course, to do any good, your well-crafted exhibit must first pass judicial scrutiny and get in front of the jury. Generally, admissible evidence comes in two varieties: (1) substantive and (2) demonstrative. Substantive evidence is the testimonial, documentary, and real or tangible evidence admitted in the case. It is governed by Federal Rule of Evidence 401 and its state counterparts, which presume admission where the evidence makes a fact of consequence more or less probable than it otherwise would be.
Demonstrative evidence does not make a fact more or less probable, but instead explains or illustrates the substantive evidence previously admitted.
Demonstrative evidence, by contrast, does not make a fact more or less probable, but instead explains or illustrates the substantive evidence previously admitted. The Fifth Circuit has described demonstrative evidence as “evidence admitted solely to help the witness explain his or her testimony,” cautioning that such evidence “has no probative force beyond that which is lent to it by the credibility of the witness whose testimony it is used to explain.”
As a practical matter, demonstrative evidence is admissible if it meets three criteria: (1) It relates to a piece of admissible substantive evidence or testimony. (2) It fairly and accurately reflects the essence of the substantive evidence. And (3) it aids the trier of fact in understanding or evaluating the substantive evidence. Because demonstrative evidence must be authenticated testimonially as being a fair and accurate representation of other admissible substantive evidence, you should involve your testifying witnesses in each stage or component of developing the exhibit itself, so that they can vouch for its accuracy.
The only other evidentiary constraint on demonstrative exhibits is Rule 403, which generally bars cumulative evidence, wasting time, and unfairly prejudicial materials. Thus, for example, even if your animated reconstruction fairly and accurately depicts an accident scene, it can be excluded nevertheless under Rule 403 as needlessly gory or for pedantically belaboring tangential details. Those basic restrictions aside, however, the sky’s the limit—possibly represented by a 3-D model showing the atmospheric density of that sky at different altitudes or the limited visibility in that sky on the day in question. It’s up to you and whatever best clarifies the testimony or amplifies your themes.
But fancier isn’t always better. A good animation can be expensive—$30,000 or more for a flash 3-D rendering from computer-aided design drawings. Worse yet, it’s ephemeral. Once the animation is off the screen, it’s gone. And while impressive, it can come across as either polished and professional or disingenuously slick, depending in part on how the jury views your client.
The most effective demonstrative exhibit I’ve ever seen was a simple wooden board with 52 small Mason jars glued to it, each jar filled with various colored beads. Each bead represented one of the pills the plaintiff would need to take each week for the rest of his life. Each jar represented a week’s worth of pills. The board as a whole represented a year of pills the plaintiff would have to swallow. And then the jury was invited to imagine another 29 identical boards, jars, and beads for the actuarial expectations of the plaintiff’s remaining years. It was simple, but powerful; reducing an abstract idea into something specific and visceral.
When to Use Demonstrative Exhibits
Finally, if considering creative uses of demonstrative evidence, there is no good reason to limit oneself solely to the trial itself. Certainly, trials are the most obvious forum, both during live testimony and again at summation, preferably in a combination of charts, pictures, on-screen graphics, and tangible models. But if that’s all you do, you might have let other opportunities slip by.
Sometimes, the best use of a compelling demonstrative is during the pretrial phase to either argue the substantive motions in limine or to help resolve the case in mediation. Judges and mediators have the same hard-wired cognitive responses as jurors and are persuaded by the same logic and accessibility of well-crafted demonstrative exhibits. Provided the evidence meets the court’s initial gatekeeping requirements, pretrial hearings may be an opportunity to test the force and effect of demonstratives while addressing other issues before the court.
Equally, since most civil cases resolve prior to trial, you might reap the maximal advantage from your demonstrative exhibits by using them during mediation. To the same extent that the demonstrative is persuasive to a juror or judge, it can also move a mediator and give the opposing party something new to worry about in their risk assessment. The well-timed reveal can force opposing parties to reckon viscerally with the weaknesses of their case at a critical moment in the negotiations, harnessing the same hard-wired cognitive responses to the same effect.
A well-designed demonstrative exhibit can breathe life into dull testimony. It can add clarity to the opaque. It can transform your witness from a distant talking head sequestered on the stand into the more familiar and trusted role of an animated, vibrant teacher, explaining difficult concepts in a comfortable, approachable way.
But to have maximal impact, these exhibits need to be carefully thought out and planned during discovery, while initial case themes are being developed and tested. Because by the fifth day of trial, as your expert methodically slogs through the minutiae of your case before a listless jury, it will simply be too late.
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