Low-Cost Demonstative Evidence (Continued from page 9)
Many businesses have security cameras that constantly record the activity in the store aisles and on the store parking lot. If your client has fallen on the business premises, it may be recorded on video- tape. Immediately notify the business, in writing, that you want to see any video- tapes of your client and demand that the business preserve the evidence for future use. Reviewing the instant replay of the fall will help you decide whether to stay in the case. If the business should ignore your request or lose the tape, you may be entitled to a spoliation of evidence instruc- tion at trial. Traditionally, plaintiffs’ attorneys have
been more active in the use of photo- graphs. Defense lawyers, however, have become more accustomed to finding ways of presenting favorable demonstrative evi- dence to the jury. For some time now the defense has been effectively using photo- graphs showing minimal property damage to your client’s automobile as a counter to the plaintiff’s claim of serious injury. The laws of physics notwithstanding, a photograph showing minimal property damage is a piece of demonstrative evi- dence that you will need to confront and overcome if you expect to get an adequate award for your client.
One lesson that I learned the hard way is that if the defense tells you that they will be using a blow-up of a photograph at trial, go and look at the blow-up of the photograph before you get to Court! A 4 foot by 4 foot blow-up of a 3 inch by 3 inch Polaroid photograph presents an entirely different impression to the viewer. In my case, the Polaroid photograph de- picted a dangerous condition on a public
sidewalk. The defense lawyer made good use of demonstrative evidence by having the Polaroid blown up into a huge exhibit. The truth was that the sidewalk defect did not look nearly as dangerous on the blow- up as it did on the smaller Polaroid. Same picture, but different size and different impression. Do not underestimate the impact of your opponents demonstrative evidence. Do not pass up the opportu- nity to examine the other side’s demonstrative evidence prior to trial so that you can ensure the accuracy of the exhibit or counter it with some demon- strative evidence of your own.
Rules of Evidence
It is beyond the scope of this article to discuss the precise foundational rules nec- essary to get demonstrative exhibits into evidence.
The evidentiary foundation,
however, should not be overlooked when selecting and preparing demonstrative evidence. If the exhibit does not get into evidence, it cannot demonstrate anything to the judge or jury, except some inepti- tude on the part of the plaintiff’s counsel. It is critical for a smooth presentation and handling of the demonstrative evidence at trial that you meet beforehand with the experts or lay witnesses that you expect to lay the foundation for the introduc- tion of the exhibit. You need to let the witnesses touch and familiarize themselves with the exhibit. Go over with the wit- ness in detail the precise foundational questions you will be asking in order to get the exhibit admitted into evidence. Remember, most witnesses are unfamil- iar with the inside of a courtroom. On the witness stand they can and do become disoriented or confused. A silly answer to a basic foundational question could create unexpected admissibility issues.
The chance of this mishap occurring in the middle of trial is greatly diminished with proper pre-trial witness preparation.
Use Early and Often Like voting in Chicago, you want to
get your best piece of demonstrative evi- dence before the jury as soon and as often as possible. For the plaintiff, the golden opportunity to be there first with the best is during your opening statement. Allow- ing the use of exhibits in opening statements is an issue that falls within the sound discretion of the trial judge. Many judges, however, will allow counsel to use demonstrative exhibits in opening state- ment, provided certain rules of “etiquette” are followed. Rule one, show the piece of demonstrative evidence to defense coun- sel well before the trial. Rule two, tell defense counsel that you wish to use it in your opening statement. Be reasonable. Be prepared to reciprocate should defense counsel wish to refer to a defense exhibit in opening. Assuming the exhibits are coming in anyway, you might actually reach an agreement with defense counsel on the use of a few select exhibits in open- ing statements.
“Erratum:␣ In the last issue of the Trial Reporter we neglected to include the name of Arthur Bryant, Executive Director of Trial Lawyers for Public Justice, as a co-author of the article entitled “FEDERAL PREEMPTION: GEIER AND ITS IMPLICA- TIONS.”␣ Mr. Bryant ably argued the Geier case before the United States Supreme Court on December 7, 1999.␣ As Executive Direc- tor of TLPJ, Mr. Bryant has long spearheaded the group’s efforts to combat the wave of federal preemption which continues to threaten historical remedies under state tort law.”
10 Trial Reporter
This leads to rule three – make sure the trial judge blesses this procedure. Even if the defense agrees, confirm your inten- tion to use your exhibit with the trial judge. If the defense objects to the use of demonstrative evidence in opening state- ment, you should still ask the court for permission, but you should do so outside the presence of the jury or even better, by pre-trial motion. Clearly, you want to get a ruling from the trial judge on this issue before you start your opening statement. You do not want to be reaching into that demonstrative evidence cookie jar during opening statement only to have the de- fense object followed by the judge figuratively slapping your wrist for trying to get into the good stuff too soon. Demonstrative evidence is good stuff for the trial lawyer. Hopefully, I have given you at least one idea that you can use in some of your cases. I recognize, however, that this discussion barely scratches the surface of this topic. There are many attorneys out there
with great ideas and examples of effective low cost demonstrative evidence that need to be shared with your brethren. Drop me a note or send it by e-mail (
wfinch@finchlawoffice.com) to explain your demonstrative evidence. If enough people respond, we might be able to con- vince the editor of the Trial Reporter to publish a demonstrative evidence tip in every edition.
Spring 2001
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