Because we learn approximately 80 percent from what we see and merely 15 percent from what we hear, the most powerful proof you can provide at trial is visual. Using great graphics and imagery is a key to good advocacy. Using them as early as possible in the case is even better. Best of all, use visual evidence and substantive evidence (testimony, deposition transcripts, interrogatory answers, etc.) and other proofs in combination: you will capture the jury’s interest, present a more powerful and persuasive case, and keep the jury engaged because you are appealing to the jury’s senses.
Not all that is visual is demonstrative. “Demonstrative evidence” is a bad catch-all name for anything other than witness testimony and documents. Not all visual evidence is demonstrative. Although we colloquially use the phrase “demonstrative evidence” to refer to visual information, many exhibits such as maps, photographs, document enlargements are substantive evidence. True demonstrative evidence, such as a computer simulation or artist’s rendering, are not direct evidence, but are created for trial in order to explain a concept to the trier of fact. By contrast, a photograph of the site, an enlargement of a document, or a chart showing increasing or decreasing sales are substantive evidence, not demonstrative. So long as the exhibit fairly and accurately represents reality, substantive evidence can and should be admitted for the truth of the matter asserted (assuming it is otherwise not objectionable and a proper foundation has been laid). Because it is easy to confuse the concepts of visual substantive evidence with demonstrative evidence, avoid where possible the phrase “demonstrative evidence.” (Using the phrase demonstrative evidence essentially admits that the proffered evidence may be inadmissible.)
