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A lawyer does not need to spend much time in the courtroom to realize that keeping the jury’s attention focused on key issues during a complex civil trial is a significant challenge. Jurors are ill-equipped during a complex trial � of antitrust or patent infringement or RICO claims for example � to identify and evaluate critical evidence. They usually receive instructions from the judge about the elements of the legal claims, a framework that is critical to have in order to place evidence in context, only after all of the evidence has been presented to them. They are not permitted to enhance their understanding of the evidence through discussions with other jurors until after they retire to deliberate. They typically are not permitted to ask questions of a witness when they are confused or have fallen behind. To top it off, they are expected to absorb hours of oral presentations � all of which concern industries, technologies and disciplines about which they typically have no educational background or work experience. Making demonstrative evidence that works One tool that trial lawyers often use to respond to these challenges is demonstrative evidence � evidence that did not play an actual role in the events underlying the case, but is used to illustrate or clarify “real” evidence or a witness’s testimony. Demonstrative evidence can take the form of charts, summaries, graphics, simulations, reconstructions, models and any other objects that can explain or illustrate issues in the case. This evidence can of course be effective. Jurors understand and recall information much better when they can both hear and see it, a common sense notion that is supported by social science research. See, e.g., Donald E. Vinson, Jury Trials: The Psychology of Winning Strategy 40 (1986). Jurors are also noticeably more attentive when visual evidence is used to break up witnesses’ testimony and opening and closing arguments. Just think about how the television networks’ news programs, which are designed to appeal to a broad audience, seek to interest viewers by using graphics, maps and videos, and on-site interviews, to “support” the news anchor’s monologue. Equally important, demonstrative evidence is the only type of evidence that trial counsel gets to create. The only limits on counsel’s ability to explain and illustrate his case are counsel’s imagination and the rules of evidence. The challenge is designing demonstrative evidence that achieves these ends. In our experience, the most effective demonstrative evidence is directly tied to the underlying evidence, is admissible as substantive evidence and is simple. Jurors understand the difference between demonstrative and real evidence. They tend to disregard demonstrative evidence unless it is closely tied to real evidence, probably because they carry a healthy skepticism about the ability of counsel and expert witnesses to shape evidence. What does this mean in practice? Focus on the real evidence at trial before summarizing or illustrating it. And, always have demonstrative evidence depict or refer to the related real evidence. Otherwise, jurors will be inclined to place little weight on the demonstrative evidence. For example, Rule 1006 of the Federal Rules of Evidence governs the admissibility of summaries of “voluminous writings, recordings, or photographs that cannot conveniently be examined in court.” Rule 1006 allows the proponent to introduce into evidence the content of these materials through a “chart, summary, or calculation,” without requiring that the underlying materials themselves be in evidence, as long as the parties have had a reasonable opportunity to inspect them. Counsel should reject Rule 1006′s short cut Unless it is all but impossible to have the underlying materials admitted in a summary fashion, counsel should reject Rule 1006′s short cut. Although it is unlikely that jurors will study the underlying materials in any detail, their presence in the courtroom and availability to the jurors during deliberations will significantly enhance the credibility of the chart, summary or calculation from the jurors’ perspective. Demonstrative evidence also has greater value at trial if it is admitted as substantive evidence � instead of being used only as a demonstrative aid � that is provided to jurors when they retire to deliberate. The problem is that as demonstrative materials move along a continuum from diagrams drawn to scale and Rule 1006 summaries, to a post-complaint video recording of the exact mechanical process at issue, to reconstructions and simulations of disputed events from information assembled by an expert, the likelihood of having the materials go to the jury decreases substantially. See, e.g., Rotolo v. Digital Equipment Corp., 150 F.3d 223 (2d Cir. 1998) (vacating judgment based on films characterized as inadmissible hearsay evidence). Trial counsel should emphasize demonstrative materials that are admissible, such as Rule 1006 summaries. Counsel should also resist the temptation to clutter up a case with complex illustrative aids that can distract jurors from the critical real evidence in the case. A better course is to present the real evidence itself in creative ways in order to achieve the same benefits that demonstrative evidence is viewed as providing. For example, in a civil case that we tried several years ago, the parties had taken a number of videorecorded, de bene esse depositions that they intended to introduce into evidence at trial. Rather than presenting the deposition excerpts that we intended to rely upon on a witness-by-witness basis, we requested permission to present the deposition excerpts of all of the deponents on a topic- by-topic basis. In other words, we proposed introducing into evidence at the same time all testimony about a particular topic, much as such testimony would be referred to in closing argument. The trial court granted our request, Verizon Directories Corp. v. Yellow Book USA Inc., 331 F. Supp. 2d 136, 142 (E.D.N.Y. 2004), and we thus avoided the need to prepare demonstrative aids to organize and integrate extensive witness testimony for the fact-finder. In order to be effective, demonstrative evidence also must be simple. A time line on a poster board is often one of the most important pieces of demonstrative evidence in a complex case. In order to be useful, the time line should focus on critical dates, with only a brief description of the significance of the dates. Although it is often helpful to refer in the time line to titles and numbers of key exhibits relating to each date, it is usually distracting to jurors to include excerpts from documents or prior testimony in the time line. If the time line covers too much territory, the jurors are less likely to retain and integrate the critical information and draw rational conclusions. The same principle applies of course to a corporate organizational chart or to a chart that sets forth each item of plaintiff’s damages claim. Keep them focused with poster board, velcro tape To keep jurors focused on only one event at a time or on each separate component of a damages claim (to use the charts described above as examples), it is often helpful to cover the chart with blank pieces of poster board secured by Velcro tape, which the witness can remove piece by piece as he moves from one topic to another. Jurors are less likely to be overwhelmed by complex information if they can focus on it one component at a time. Then, after all of the components have been discussed and all of the covers have been removed from the chart, jurors are able to see in one place all of the individual components and to understand better their interrelationship. Simplicity is important for reasons other than juror comprehension. If demonstrative evidence is too slick or looks like it was very expensive to produce, it may send an unintended message to jurors � that the client needs to avoid focusing on the underlying real evidence or intends to win at all costs or has far greater resources than its opponent. Trial counsel should always be sensitive to this issue, particularly where the client is a large corporation. There is no substitute for trial counsel’s direct involvement in the design of demonstrative evidence, given his superior knowledge of the case’s central themes and relevant facts. Counsel should also be directly involved because well-designed demonstrative exhibits present a unique opportunity to shape evidence at trial. Although there are a number of useful treatises on the design of visual evidence, it is difficult to top Edward R. Tufte’s books, including The Visual Display of Quantitative Information (1983), Envisioning Information (1990) and Visual Explanations (1997). The dividend is jurors who are better prepared to decide cases. Dan K. Webb and J. David Reich are partners at Winston & Strawn who concentrate on civil, regulatory and white-collar cases. Webb, the firm’s chairman, previously served as the U.S. attorney for the Northern District of Illinois. Reich, based in New York, previously served as an assistant U.S. attorney for the District of New Jersey.

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