Useful tips for using demonstrative evidence

20 Tips for Trial Exhibits
By Laurence Nimmer and Melissa Doyle
Other than announcing that it’s lunchtime, what is a surefire way to get the jury’s attention? Introduce a trial exhibit. Litigators find exhibits indispensable to educate and persuade today's jurors who have an increasingly visual orientation. Here are some basic tips to keep in mind when working with demonstrative evidence.
1) Color can be instrumental in persuading the fact finders. Color can subtly influence our associations and in general, the use of color is a helpful aid in generating interest.
2) The distance from jury box to easel dictates the lettering size on an exhibit. A minimum letter height of about ½” is required to remain legible at a distance of 25'.
3) Arrange for simultaneous viewing and avoid the problem of having the jurors pass around an 8 X 10" photo which can disrupt the continuity of your presentation. It is usually preferable to use one blow-up that the entire jury can view and thereby prevent a lag in concentration. Another alternative is to have jury books handed out to each juror, but again, attention can wander.
4) Use electronic means to choose portions of testimony instantly in order to impeach a witness. This applies to both written and video testimony. The interactive capability of these technologies can be useful with all types of graphics and documents.
5) Frequency of use can dictate the format of the exhibit. An overhead slide can be useful when the equipment is all set up, but a chart mounted on poster board is much easier to refer to on a moment’s notice.
6) If possible, request that your exhibits accompany the jurors to the jury room where they can be persuasive at the most critical stage of litigation. During closing, you may wish to remind the jurors to request the exhibits for their deliberations.
7) During the course of a trial keep in mind that new exhibits can be created, or existing ones modified. In lengthy proceedings, the evidence ebbs and flows and new concepts sometimes become important.
8) Be consistent. Visual conformity will help jurors to focus on the content and not on learning how to read or understand the graphic.
9) Avoid turning down the lights for extended periods of time when projecting images. Your audience is more likely to feel sleepy in a darkened room.
10) Personal injury and wrongful death cases can be dramatically enhanced by the use of “day-in-the-life” videos, both during settlement conferences and at trial. A relatively inexpensive video can forcefully communicate impaired quality of life, including the absence of a loved one.
11) Consider using video for demonstrations rather than doing the demonstration live. Nothing is more embarrassing, and potentially damaging, than having a demonstration backfire on you in court.
12) Use a recess to set up special equipment. Make sure to test it yourself prior to its use!
13) Leave something to the jurors’ imagination. You don’t have to spell out every little detail. Allow the fact finders to participate in the search for truth by using their imaginations to fill in the blanks.
14) If possible, have witnesses participate in preparing the demonstrative exhibit. At the very least, make sure the witness sees it before his/her testimony and is comfortable with it.
15) Order additional clear overlays if there is a chance that the opposition will want to make their own marks after your witnesses have marked on them.
16) Simplicity is essential with demonstrative evidence. Too much information in an exhibit can distract the jurors from focusing on the key concepts.
17) If possible, avoid waiting to the last moment to order graphics. While some graphics can be done within hours, other graphics, such as diagrams or complex timelines will take longer to create. Quick turnaround can incur substantial rush charges.
18) To meet admissibility standards keep in mind this general rule of thumb: will the exhibit help jurors understand a witness’s testimony without misleading them?
19) Prepare additional back-up versions of the same exhibit if you are unsure whether certain elements in your exhibit will be admissible. These alternative versions provide insurance against an adverse evidentiary ruling. Generally, the cost to create a modified version of an exhibit is a fraction of the original cost.
20) Use your demonstrative evidence early and often. You can use it to illustrate the testimony of one or more witnesses and you can use it again in your closing argument. As a general rule, the more your exhibit is seen, the more persuasive it becomes.