Low-Cost Demonstative Evidence (Continued from page 5)


worthwhile. The point here is that your client is often the best source of low cost demonstrative evidence.


The only fatal flaw that I could detect


in the Jeffers case was Belli’s apparent fail- ure to actually introduce the exhibit into evidence at any time during the trial. Today’s trial practitioner would be well advised to have the prosthesis admitted into evidence sometime during the plaintiff’s case in chief before using it, as Melvin Belli did, in closing argument. Make no mistake about it, however, Katherine Jeffers’ prosthesis would be just as admissible today as it was in the 1940’s. Although, it is unlikely that any of us would dare to deliberately drop it in the lap of a juror without first seeking the court’s permission to approach the box. Demonstrative evidence sometimes


provides the trial lawyer with the key to a dynamic and persuasive presentation to the jury. While most verbal testimony is directed to the jurors’ sense of hearing, demonstrative evidence can be more ef- fective because it is also directed to additional senses such as sight and touch. The importance of appealing to the sense of sight in a jury trial is borne out by the jury studies which have shown that ju- rors tend to retain in their memories over 75% of what they see and less than 25% of what they hear. These statistics offer compelling evidence for the use of demon- strative evidence in virtually every case. Demonstrative evidence also has the side benefit of making a trial more fun and interesting from the perspectives of the participants, especially the witnesses and jurors.


In the Beginning The time to be thinking about demon-


strative evidence in every case is at the beginning – the initial client interview. Once you have heard the client’s story, you can start thinking about what objects or documents will corroborate the client’s version of events and to prove essential elements to the client’s cause of action. What evidence will illustrate or explain the client’s injuries. What can you pro- duce that will capture the jury’s attention or clarify an important issue?


Demonstrative evidence does not fall


into your lap by coincidence. Rather, it comes about as a result of a deliberate pro- cess involving concentration, creation, collaboration, consultation and collection. Concentration simply reflects the process of “thinking” about what types of demon-


6


strative evidence you believe will be ef- fective for your case. In the context of personal injury cases, concentrate on pos- sible evidence that will illustrate or tend to prove both liability and damages. We need to think in terms of “creat-


ing” demonstrative evidence. Many of the best opportunities to create dramatic de- monstrative evidence will be lost with the mere passage of time. Cars are sold for salvage and the human body will heal over time. Waiting until your client is finished medical treatment before thinking about damage evidence will result in many missed opportunities. One of the best ways to lower the cost


of your demonstrative evidence is to col- laborate with your client on the creation and gathering together of potential de- monstrative evidence. The clients and their families are often willing to help pre- serve or collect evidence.


They can competently obtain photo- graphs of the vehicles and the scene if asked. Remind the client about the evi- dence you want them to preserve. This saves you time and money. Do not be afraid to consult with other


lawyers on demonstrative evidence. What has worked for them may work for you. I once attended a seminar at which a pre- eminent trial lawyer confessed to the audience that he “didn’t feel that he had ever come up with an original thought.” Virtually everything he had ever used in any of his cases had been copied from another lawyer. I felt pretty good leaving that seminar because that is exactly how I felt about my own cases.


I still feel that


way today! Creative thinking and collaboration with clients and other counsel must be followed-up with action. You must col- lect the potential exhibits as the case progresses. Do not wait until you are ready to file suit or the trial is imminent before gathering together demonstrative evidence. Develop office procedures so that you can discipline yourself and your staff to gather demonstrative evidence as you go. As the discovery phase of your case is winding down, you want to be in a posi- tion of selecting among many pieces of demonstrative evidence those few exhib- its that will most dramatically illustrate or explain your client’s cause. Do not hesitate to discard a piece of demonstra- tive evidence if it is no longer relevant or needed for your case. Savvy defense law- yers have been known to stipulate to liability in some cases and then appropri- ately argue that the plaintiff’s gruesome and compelling liability evidence is no


Trial Reporter


longer relevant. Moderation is also para- mount. Using a few good pieces of demonstrative evidence is better than hav- ing no demonstrative evidence or demonstrative evidence overload (also re- ferred to as “exhibit clutter”). This concludes the preaching on the virtues of demonstrative evidence.


The


rest of this paper dishes out meat and potato tips for bread and butter cases. My hope is that you will be able to use one or more of the ideas set forth below in some of your pending cases.


Tales from the Trial Trenches I am continually amazed at the creativ- ity and ingenuity of my fellow trial lawyers when it comes to the presentation of de- monstrative evidence.


Some of the


examples set forth below are very inex- pensive and are readily available. A small amount of effort on your part could make a big difference in the trial or settlement of your case. Irwin E. Weiss taught me how to ob- tain a videotape of any state road in Maryland where a collision has occurred by simply writing to the State Highway Administration.


These videotapes will


show the road of travel from the driver’s perspective, from each lane of travel along with the posted speed limit. The video- tape of any section of state road can be secured by writing to:


State Highway


Administration, 2323 West Joppa Road, Brooklandville, Maryland 21022, 410- 321-2094. The total cost of obtaining this videotape is to send SHA a blank video- tape! Your client can then testify that the


roadway videotape fairly and accurately depicts the lay of the land and the road- way at the time of the collision. If you get a certification from the State, the vid- eotape is admissible on its own.


This


videotape is also helpful if you have a cli- ent involved in a collision on a state road in the far reaches of the state. Obtain the videotape from SHA and then sit down with your client, in your office, and re- view the video as you are going over the details of the collision. Matthew S. Zimmerman recommends


that you obtain the web page for any op- posing experts testifying at your trial. Matt downloaded a defense expert’s web page and blew it up for trial. Matt’s cli- ent was suing a contractor. On the web page the expert bragged that he was “the contractor’s best friend.” Matt’s blow-up was an effective and inexpensive piece of evidence that vividly demonstrated the expert’s professional bias. Augustus F. Brown believes that the


Spring 2001


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56