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When the story leaked out that a city council had approved construction of a new municipal services complex, the owner of a small apartment building slated for expropriation and demolition sued. The plaintiff alleged the story had caused him to lose business through the nonrenewal of leases and a decline in the value of the property. Using timeline graphics, lawyers for the city were able to show the judge that over the five-year period before the news leak, the building had slowly become a shell. Several long-term tenants had moved out, few new tenants had moved in, and, through the owner’s own neglect, the property had been steadily losing value. This example demonstrates the power of simple visual images to make trends and patterns in evidence clear and easily understandable. Such images are among the most useful tools a lawyer can bring in to the courtroom. In fact, it is not too much to say that images that clarify evidence and compel its interpretation can often be the deciding factor in achieving the desired outcome. Black’s Law Dictionary defines demonstrative evidence as “that evidence addressed directly to the senses without intervention of testimony. Such evidence is concerned with real objects which illustrate some verbal testimony and has no probative value in itself.” The presentation of images is thus ancillary to the presentation of argument; its role is to illustrate and educate through clarification. When used at the pretrial stage, it should fix in the mind of the fact-finder the themes of the case to be heard later at trial. The design of any exhibit is governed by the rules of admissibility of evidence. Rule 403 under Article IV of the Federal Rules of Evidence states that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” By implication, the layout of visuals should be simple, direct and conservative. DYNAMIC OR STATIC The presentation of demonstrative evidence may be either dynamic or static. A dynamic presentation requires some form of technology such as a video recording, animation or a slideshow. These exhibits may allow the use of techniques such as “layering” that can track processes from simple beginnings to their ultimate complexity and vice versa. They are also extremely useful in showing the chronology or stages of events. The spread of a contaminant through groundwater can be very effectively displayed this way as can the movement of laundered money across the globe. Special software packages allow you to scan images and documents, project them on a screen and move among key sections as you need illustration in the course of your argument. Static presentations are prepared on poster board or other material and display images such as organizational diagrams, maps, medical illustrations and timelines. They are of great value because they can remain in view throughout the trial as a constant reminder to the judge and/or jury of the argument you are building. The judge may also allow jurors to retain these static visuals during deliberations. In contrast, the memory of dynamic visuals is more fleeting. Choosing between a dynamic or static presentation depends on several factors, including the judge’s tolerance level, the type of trial, the cost of developing the exhibit, the length of time you have before trial begins and the complexity of the ideas being conveyed. You may also base your decisions on what sections of the case could best be served by demonstrative aids. MATCHING VISUALS TO EVIDENCE A timeline of events is often one of the key exhibits in a trial and can be a valuable organizational tool during all phases of the case. Initially, it may be used to summarize key events, find patterns and highlight important dates. It will likely undergo several revisions before trial, as incidents less relevant to the central argument are dropped. In the end, you should have a powerful visual road map that will lead the judge and jury through your case. Ideally, it will be enlarged into a poster that remains in permanent view as a reference point. Flow charts can be extremely useful in helping to simplify and explain the steps in a process. For example, they can be used to follow the flow of funds through different bank accounts, companies and/or individuals. They can also illuminate critical relationships among key figures and show the connections between apparently unrelated parties. Like a timeline, they can be a useful permanent reference for the judge and jury. Scanned original documents are exceptionally useful demonstrative exhibits. They can be mounted to enable you to review a large number of items quickly. Many software packages allow the user to highlight certain sections such as signatures or key words in a contract. Powerful magnification features permit scrutiny of otherwise illegible elements. Scanned documents may include checks, sections of an annual report or investment application forms arranged to present an electronic “paper trail.” Opinions and exhibits from expert reports can also be replicated as demonstratives for illustrative purposes. The presentation of complex financial concepts usually requires graphs. Unfortunately, they are one of the most difficult trial exhibits to develop (as will be discussed below) but are worth the trouble since they can be very valuable for summarizing vast amounts of numerical data. Spreadsheet and presentation software can provide dozens of graph templates in both two- and three-dimensions. The form you choose will depend on the type of data you wish to present. Illustrations require specialized software and/or graphic skills to produce. The designer might have to work closely with medical doctors, architects and other professionals to develop demonstratives technically correct enough to enable expert witnesses to swear to their accuracy and fairness. Animation can reconstruct events that would be inadequately represented in two dimensions, such as an accident scene or a medical procedure. Simple maps can locate events and provide context. Other forms of demonstrative evidence include photographs, models, films, objects and actual demonstrations by a witness. GETTING STARTED Once the subjects needing clarification and the types of demonstratives have been selected, the design phase can begin. Demonstratives are useful not only in the courtroom but also in helping you clarify your own thinking as you develop the case. Patterns of evidence and potential strategies can be evolved this way. For trial purposes, demonstratives need to be prepared well in advance to make certain they conform to the rules of evidence. Color choice is a central design consideration. People associate colors with different emotions. While it might be tempting to use green for your client and red for your opponents, the judge may view this as a form of bias. Remain conservative when choosing colors. Meaning must drive design. All color should have a purpose, such as sequencing content or identifying issues. Be mindful that backgrounds do not overwhelm or distract. Presentations projected on a screen work best with a neutral, dark background while static visuals should have a white background. If the meaning is overwhelmed by the color, the judge and jury could misinterpret the evidence. PITFALLS There are several design traps that can snare the unwary. Graphs are often the most poorly developed of all trial exhibits. Interpretation can be influenced by the use or misuse of scale or by comparing graphs with different scales. Confusion may occur if two- and three-dimensional graphs are interspersed, when the wrong type of graph is chosen for the type of evidence to be presented or when the graph is cluttered with too much information. The ambiguity created by such exhibits may have a worse effect on the judge and/or jury than having no exhibits at all. Clarity may require the presentation of information by means of several exhibits using different types of demonstratives. It is also important to have witnesses and experts practice using the exhibits before trial. This will determine their user-friendliness and whether any modifications are required. Finally, all exhibits should be thoroughly vetted by designers, attorneys and other relevant experts. Demonstrative evidence should illuminate the key principles and arguments in a case. The goal should be to make the fact-finder’s job easier and to reinforce the salient points for the judge and/or jury. In today’s courtroom, a well-designed exhibit can truly make the difference and prove that a picture saves a thousand words. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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