Aitken Redesign

By Chris Aitken and Megan Demshki

This article was originally published in the October 2017 (Vol. 67, No. 9) issue of “Riverside Lawyer Magazine.”

---

In today’s fast-paced world, succinct and impactful communication of the most relevant evidence is vital in a jury trial. Demonstrative evidence is a necessary tool in the presentation of evidence in a way that both effectively educates and holds the attention of the jury. Charts, maps, timelines, photographs, lists, videos, diagrams, models, documents, and animations are all common types of demonstrative evidence.

Demonstrative evidence can be thought of as an exhibit used to illustrate evidence, while documentary evidence is an exhibit used as evidence of a fact. Demonstrative evidence is admissible for the purposes of illustrating and clarifying a witness’ testimony. Trial judges have wide discretion in admitting demonstrative evidence.

Some types of demonstrative evidence may be permitted by the trial judge for the purpose of assisting jurors in understanding testimony, such as a writing out a chart of adjectives used by the witness. However, if demonstrative evidence is in any way testimonial, proper foundation must be laid for the use of that evidence.

Counsel may be permitted to question a witness regarding demonstrative evidence, such as during crossexamination, without offering it as evidence.

Demonstrative evidence is useful in all different types of cases and the creative possibilities are endless. From skeleton models and animations of surgeries, to a simple butcher paper list of injuries listed by plaintiff during her testimony, demonstrative evidence can be as complex or as simplistic as you are comfortable with.

It is important that every piece of demonstrative evidence you intend to show to a jury is well thought out, examined for potential use in cross-examination, and tested by the trial attorney who will be utilizing the exhibit. Our top ten tips for impactful use of demonstrative evidence include:

1. Be comfortable with presenting the exhibit, and the technology used in doing so. While technology can generate incredible demonstrative exhibits, the impact of those exhibits can be lost if the presentation is ruined by a clumsy execution or technical glitch.
2. Ensure your case theme is consistent throughout your demonstrative exhibits and doesn’t create conflicts in your case messaging.
3. Utilize exhibits that succinctly make the point to avoid sustained objections for consumption of undue time.
4. Make sure your demonstrative exhibits are clear and large enough that all jurors can easily see the content.
5. Be prepared to defend Evidence Code section 352 objections that the demonstrative evidence is more prejudicial than probative.
6. Lay foundation for the demonstrative exhibits you would like to use in your closing argument carefully during direct examination of your expert witnesses.
7. Don’t be afraid to go back to the basics and utilize mediums that are available to you when creativity strikes. Butcher paper, white boards, the Elmo, or a highlighter can make your point just as effectively as a flashy PowerPoint with the right delivery.
8. Evaluate your matter and budget your demonstratives accordingly. While high value demonstrative exhibits can make sense in some matters, creatively generating low cost demonstratives can be just as effective.
9. Test your demonstrative exhibits on friends, family members, co-workers, and mock jurors to ensure that the message you are hoping to communicate to the jury is consistent with the exhibit’s first impression.
10. Always remember to diligently mark demonstrative exhibits for identification if the judge will not allow the demonstrative exhibit to be formally admitted into evidence to ensure the demonstrative evidence is part of the record on appeal. While demonstrative evidence is an effective tool for trial, it is appreciated that most cases do resolve prior to trial (e.g. in mediation). Demonstrative evidence is a necessary tool to maximize the settlement value of your cases whether through effective demand letters, or through the formal process of mediation. We look forward to sharing with you what our firm has found effective to maximize your settlement opportunities that are both cost effective and compelling, or on the appropriate case, more robust. Even if the settlement efforts do not lead to a conclusion of the matter, many of the demonstratives generated as a settlement tool can also be helpful at trial.

Christopher R. Aitken is a partner with the firm Aitken Aitken Cohn and Megan G. Demshki is an associate with the firm. Christopher can be reached at chris@aitkenlaw.com and Megan can be reached at megan@aitkenlaw.com.

Read More By Megan Demshki

»

Read More By Chris Aitken

»