evidence || effective demonstrative evidence

Effective Demonstrative EvidenceAuthor(s): Mark A. DombroffSource: Litigation, Vol. 12, No. 1, EVIDENCE (Fall 1985), pp. 44-47, 65Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759033 .

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Effective Demonstrative Evidence

by Mark A. Dombroff

The jury has settled into the jury box, and all the lawyers are in position at counsel table ? except one. A hush settles over the courtroom as those present anticipate the arrival of the judge. The door to the judge's chambers opens, and the marshal strikes the gavel three times and announces: "All rise. This United States District Court is in session. God save the United States and this Honorable Court. Please be seated."

"Appearances, counsel," requests the judge, as he takes the reins of what promises to be a long and exciting trial. The plaintiff's lawyer rises. "Good morning, Your Honor.

Appearing for the plaintiff, John Melton and Michael Anderson of Melton, Harvey, Love and Harvey."

As the plaintiffs attorney sits down, all eyes shift to the defense counsel's table, but nothing happens. Only one per? son, presumably a lawyer, is seated there, and that person

makes no move to rise and engage in the routine introduc? tions or address the court.

A quiet and somewhat expectant hush settles over the courtroom. Music is heard, at first very softly and then with

increasing volume. After about 10 seconds of what could

only be described as an overture, a voice is heard exclaim?

ing: "Ladies and gentleman of the jury! Your Honor!

Appearing on behalf on the defendant, direct from

Washington, D.C.?Mr. Mark Dombroff!" With these words, the music reaches a crescendo, the courtroom doors

part as if animated by an invisible force, and I walk in, stride to counsel table, nod to the jury and the judge, and the trial commences.

You say I would be held in contempt before I got half?

way through my entrance? Of course. So if theatrics are out, then the question that we trial lawyers face is how we can dramatize our cases and emphasize our positions in a man? ner that is both permissible under the rules of evidence and

procedure and, at the same time, compelling. Often the best way is through demonstrative evidence.

All types of litigation present opportunities to use demonstrative evidence. The increasing complexity of liti

The author is special counsel with Hughes Hubbard & Reed in Washing? ton, D.C.

gation, the frequent need to explain technical concepts to

lay judges and juries, and the importance of showing, as well as telling, judges and juries why and how things hap? pened combine to present opportunities for lawyers to use demonstrative evidence effectively.

Often, what limits the use of demonstrative evidence are not the rules of evidence or procedure but rather the imagi? nation and creativity of the lawyer handling the case. Trial

lawyers are used to the concepts of relevancy, materiality, and competency. While certainly crucial to determining the

admissibility of evidence, these considerations do not take into account dramatic impact or persuasive value. Using demonstrative evidence is a way to go beyond merely get? ting facts in evidence and instead make them sing, burn them in the jurors' memories.

Properly planned and thoughtfully presented, demon? strative evidence can be one of the most effective weapons in the litigator's arsenal. Demonstrations, experiments, charts, graphs, diagrams, and models are some of the com? mon demonstrative techniques that lawyers can use crea?

tively and effectively at trial. At least once during every trial lawyer's career, he will

probably be tempted to conduct a demonstration or experi? ment to prove a point dramatically or to discredit a wit? ness. This technique may involve a scientific experiment, a demonstration of the witness's estimate of time or dis? tance, an experiment focusing on the witness's powers of

perception or observation, or perhaps the reenactment of an event, directed at proving the improbability of a witness's account of pertinent facts.

To lay the proper foundation for experiments or court? room demonstrations, you must show that the proposed experiment or demonstration is calculated to aid the trier of fact in understanding the facts of the case. The evidence must supplement and not merely repeat the testimony of other witnesses. The proposed experiment or demonstra? tion must meet the basic evidentiary tests of relevance and

materiality. There must be a showing that the person conducting the

experiment or demonstration is qualified to do so and that

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any equipment or apparatus involved is of the proper type and in proper working order. Most importantly, you must establish that the conditions under which the experiment or demonstration is conducted are substantially similar to those that existed in the real-life situation at issue. While experiments and demonstrations can be extremely

effective, they can also backfire if you do not anticipate how your opponent can use your own evidence against you.

Consider the example of the electrical engineer who built an elaborate device to conduct an in-court experiment, dur?

ing the plaintiffs rebuttal case, to show that an electric motor failed to operate at the proper number of revolutions per minute. To make the point, the witness used a pulley and purple fan blades attached to the motor. If allowed to go unchallenged, this demonstration would have been

directly contrary to unequivocal testimony I had presented on behalf of the defendant.

On cross-examination, I was able to show that the con? ditions of the demonstration were not substantially simi? lar to those at issue in the case:

Q: Now, sir, does the motor in the Mark 1C equipment at Pago Pago have this wooden pulley arrangement?

A: No.

Q: In other words, it [the motor in actual operation] doesn't drive any pulleys or anything?

A: No.

Q: Did you ever run any measurements without the wooden pulleys and leather belt and the fan?

A: Not measurements, no.

Q: So, sir, assuming that Exhibit 394 is the correct man? ual for the motor in question and that it correctly describes the system at Pago Pago, isn't it correct, then, that the motor you have was manufactured by

somebody other than the manufacturer of the one at Pago Pago?

A: Yes, with those assumptions, that is correct.

Q: And, not only was it manufactured by somebody else, but it appears physically to be a different motor, doesn't it, sir?

A: The casing fins are certainly different. After I had elicited these admissions on cross

examination, I had the witness remove the nonconform ing parts (the wooden pulley, belts, and purple fan blades) and repeat the experiment. This time, it proved that the motor properly operated at 1,800 revolutions per minute. The lesson is that a carelessly conceived experiment or demonstration may backfire and undo the case it was intended to support.

Sometimes an experiment or demonstration may be more effective if it is performed before trial and documented with videotapes, motion pictures, or still photographs to be presented during the direct examination of the appropri? ate witness. Videotape allows the demonstration to be replayed or the action to be frozen at a particular point as the witness describes what is occurring.

Videotapes, motion pictures, or still photographs can also be used to focus the judge's or jury's attention on par? ticular aspects of the presentation. Also, unnecessary lulls in the trial can be avoided if the experiment is not conducted in the courtroom. Even if the experiment is conducted in court, videotapes, motion pictures, or photographs should be available to be marked in evidence.

Depending on what is involved, either a specially retained expert or another witness can conduct the experiment or demonstration. Consider having an opposing witness con? duct the experiment or demonstration as part of the cross examination. But if you do, be extra careful to pin down in advance that the instructions you give will invariably pro? duce the result you want.

Tactical Risks Rehearse the experiment or demonstration enough times

so that, at trial, your attention will be devoted fully to the

presentation, and you will not be distracted by the mechanics of the experiment. If you can, try out the experi? ment or demonstration before two audiences. The first should be familiar with the case. Its purpose is to look for the tactical risks in the presentation and to point out the attacks that a skillful cross-examiner can launch and how he can use your experiment against you.

The purpose of the second audience is to let you know whether the demonstration is effective and persuasive. These folks need know only as much about the case as is necessary to understand the demonstration in context. Sum? marize for the group what you think the evidence at trial will be up to the point of your experiment or demonstration.

Plan in advance where in the courtroom the experiment will be, so that the judge and jury can best see what is being done. At trial, you should not only lay the technical foun? dation but carefully set the stage by having the witness

explain what will be done and what the trier of fact should look for.

You will, of course, have to ask the judge's permission for the witness to step down from the jury box. If it is your own witness who will conduct the experiment or demon

45



stration, usually you should continue the examination so that the witness describes each step he takes.

If you are having an adverse or third-party witness con? duct the experiment on his cross-examination, you should lead him through the experiment by the nose, giving him a precise, unambiguous instruction each step of the way. After each part of the procedure, you can ask him if he has done what you told him to do: "Mr. Newton, have you now held the prism up to the light and observed the separation of the colors?"

The admissibility of experiments and demonstrations is within the broad discretion of the court. The judge's rul?

ing on substantial similarity will rarely be disturbed. See, e.g., Saldania v. Atchison, Topeka & Santa Fe Ry, 241 F.2d

Studies show that people comprehend and retain more when they are both shown and told something.

321 (7th Cir. 1957), where a test to see if two men could lift a railroad tie was admitted; Lobel v. American Airlines, Inc., 205 F.2d 927 (2d Cir. 1953), in which experiments by pilots to determine the results of paper in a poppet valve were

admitted; Lever Bros. Co. v. Atlas Assurance Co., 131 F.2d 770 (7th Cir. 1942). But see Glick v. White Motor Co., 458 F.2d 1287 (3d Cir. 1972). There tests to show what should have been done to avoid a failure of a spring in a truck's

suspension system were not admitted because the tests were both too complex and were influenced by hindsight.

By carefully controlling the conditions of the experiment and by laying the proper foundation, you can maximize

your chances of having your experiment or demonstration received in evidence. Above all, be sure that the conditions of the demonstration or experiment (like pulleys, belts, and

purple fan blades) are consistent with the facts. If there are

particularly troublesome issues surrounding the admissi?

bility of your experiment and if the preparation costs are

substantial, you should consider making a motion in limine to get an advance ruling. While a great deal has been written about a number of

the more sophisticated and costly approaches to demon? strative evidence?like videotapes and computers?charts, diagrams, and graphs are usually easier to use and more

economical, and sometimes they can be just as effective. Words go only so far. Sometimes it is hard to get people

to understand a complicated process or an intricate layout just by describing it. In any event, the more complicated the subject and the longer the trial, the sooner mere words will be forgotten or?sometimes even worse?jumbled in the hearers' memories.

A picture, chart, or graph, though ? if carefully prepared,

clearly explained, and available for continuing inspection ?can be comprehensible and memorable. Studies show that people comprehend and retain more when they are both shown and told something, instead of

just taking it in the ear.

The simplest and usually the most economical form of demonstrative evidence is a chart, graph, or diagram. Charts are perhaps the most common form of demonstra? tive evidence. The type of chart to use will depend on what you want to illustrate.

? Tables can be effectively used to show statistics. Since

large amounts of information on a chart can be con?

fusing or cloying, tables should be kept spare and sim?

ple, presenting only a few significant numbers. Verbiage and footnotes should be avoided. Color can be used

effectively to highlight especially significant numbers or lines.

A table is not a good way to show changes in statis? tics over time. But the same data, when plotted on a

graph, can illustrate trends, increases, decreases, and other progressions.

? Bar charts can be used to compare data such as produc? tion of different plants or earnings in different periods.

? Pie charts not only display data but show parts as

proportions of the whole.

Diagrams are a second common graphic demonstrative

technique, and most courts are accustomed to receiving dia?

grams into evidence. While charts are normally used to dis?

play numbers, trends, or proportions, diagrams illustrate relevant places and objects that the witness cannot describe as clearly or effectively with words alone.

Diagrams may be used in lieu of or along with descrip? tive testimony. Annotation, 9 A.L.R.2d 1044,1048 (1950).

Usually, though, it helps to structure your examination so that the witness walks the judge or jury through the

diagram. The kinds of diagrams that have been received in evidence

are as varied as the imaginations of trial lawyers. For exam?

ple, in one case, a witness was permitted to draw on the courtroom floor a diagram of the building where a rob?

bery was committed. See Barrett v. State, 190 Tenn. 366

(1950). Judges generally admit diagrams drawn on chalkboards.

See, e.g., People v. Fisher, 340 111. 216 (1930). In at least one

case, though, a blackboard sketch was excluded because it could not be made part of the record. State v. Jones, 51

N.M. 141 (1947). From a practical standpoint, it is better to use large artists' pads (30 x 40 inch) and marker pens, because of the problem of preserving diagrams on chalk? boards throughout the trial and on appeal.

Graphs are a third common type of graphic demonstra? tive evidence. Graphs can effectively show increases, decreases, and other trends or progressions. Graphs should be large enough that the jury can easily see them, and they should be set up so that the witness can use them to illus? trate his testimony. Both the lawyer and the witness should have a pointer to use.

As with other types of demonstrative evidence, founda? tion considerations are critical when you have graphs pre? pared for use at trial. Among the points to keep in mind are the following: Is the graph prepared to illustrate a par? ticular concept or point? Does the graph accomplish its pur? pose fairly? Is the graph drawn to scale? Can the accuracy of the graph be verified?

When presenting a chart, graph, or diagram at trial, there are a number of techniques you can use to ensure maxi? mum effectiveness.

46



Consider keeping your demonstrative evidence under

wraps (maybe even literally) during your opening statement, so that it will have its maximum impact when you unveil it later on. Unless you are required to reveal your demon? strative evidence before trial, bring it into the courtroom in a manner calculated to excite curiosity without creating a disruption.

Have small (8 lA-x-\ 1-inch) copies of all charts available for inclusion in the record and for close inspection by the

judge and jury. The full-size exhibits should be large enough so that everyone can see them. Use colors to emphasize the

most important information and to maximize visual interest.

Decide well in advance where you will put the exhibits when the witness uses them. This is a trial-and-error pro? cess. You should make sure that the judge, the jury, the wit? ness, and you can all see the displays. If possible, go to the courtroom when it is not is use. Take the witness and the

graphics with you, and block out the best spots for the wit? ness and the easel.

Necessary Pains

Clear plastic overlay material, along with clamps, tape, and grease pencils, should be available for use with both

your exhibits and your opponent's exhibits. If overlays are created in court, they should be marked as separate exhibits. For example, if a chart is marked as exhibit 12, overlays for that chart might be marked 12-1, 12-2, and so forth.

Take pains to ensure that every witness who is going to use a chart, diagram, or graph is thoroughly familiar with it before he takes the stand. An effective way to make sure the witness knows the graphics inside out is to have him

actually prepare the exhibits along with whatever graphic artist or consultant you use.

In any event, you should sit down with the witness and go over the exhibits in detail several times. As with any other courtroom presentation, fumbling and uncertainty will diminish your effectiveness, and only careful, thorough preparation will avoid this untoward result.

Think about whether your witnesses can prepare charts, diagrams, or graphs during their testimony. If there is no demonstrative evidence before the trial, there will be noth?

ing to disclose, and you will stand a better chance of catch?

ing your adversary off guard. Sometimes charts, graphs, or diagrams used during the

opening statement can be a visual loom on which you can weave the threads of testimony into a coherent whole. Often, though, the use of any exhibits during this phase will dis? tract both the jury and the lawyer.

If there is a compelling piece of demonstrative evidence, use it, but be sure that it is simple to understand, easy to

see, clear, and memorable. Tables and complex charts are

rarely good exhibits to use during the opening statement or closing argument, because they usually require some con? centration and interpretation. In contrast, sometimes bar

charts, simple graphs, or diagrams that vividly illustrate dramatic trends, relative proportions, or important objects or places can be used to make a strong first or last

impression.

Models can be captivating, visually interesting, and use? ful in bringing the complexity of the world into the court

room. But they can also be an expensive waste of time if not made to the highest standards and supported with the most solid foundation that you can construct.

Like other forms of demonstrative evidence, models are

generally admissible with the proper foundation. See Brine gar v. San Ore Construction Co., 302 F. Supp. 630 (E.D. Ark.

1969). But models have been rejected because part was not to

scale or because of a great and misleading disparity in size between the model and the original. See, e.g., Burris v. Tex? aco, Inc., 361 F.2d 169 (4th Cir. 1966), in which a model was

rejected because the tubing used to represent a drainage pipe was not to scale, making the proposed experiment substan?

tially different from the actual conditions in the case. Most of the considerations surrounding the admissibil

ity of other types of demonstrative evidence are equally applicable to use of models. Here are seven conditions that should meet most foundation objections regardless of the

purpose for which the model is used: 1. The model is to scale. 2. The model is as close to the original in as many details

as possible, except size. 3. Testimony requires reference to the model for clear

understanding. 4. The model is useful in illustrating or explaining

testimony. 5. The model is not likely to mislead or confuse the jury. 6. The witness is qualified to testify to the accuracy of

the proposed model. 7. The witness verifies the model as an accurate represen?

tation of areas or objects at issue. See 1 Am. Jur. Proof of Facts 604 (1960). Assuming the evidence is relevant and material to the litigation, a model

meeting these seven criteria should be admissible. If it is impracticable to build a model that is both to scale

and otherwise faithful to the object or place it depicts, it

? ?. a visual loom on

which you can weave the threads of testimony into a coherent whole.

is often possible to get it in anyway by assuring the court that it is offered only for illustrative purposes, with full dis? closure of its limitations. For example, at the trial of In re

Pago Pago Air Crash of January 30, 1974, MDL No. 176

(CD. Cal., judgment entered Oct. 6, 1978), I used a rather

large model of an airport and the surrounding terrain, with an accompanying written statement explaining its purposes. The statement read as follows:

Exhibit 1600 is a model of Pago Pago International

Airport and certain portions of the terrain underly? ing the approach path. The portions of the terrain shown do not include obstructions, trees, lava bank or other objects that may extend above surface. The

(Please turn to page 65)

47



Demonstrative Evidence

(Continued from page 47) model is not to scale nor does it

represent the topography of the island in scale. Not all of the ter? rain surrounding the airport is shown, nor is all of the land between the coast and airport.

On the basis of that statement, the

judge admitted the model into evi? dence at the beginning of the govern? ment's case, and thereafter the model became the focus both of the court? room and of much testimony. While the model was, in fact, essentially con? structed to scale, the uses to which the

model was put did not require that it be to scale, thereby avoiding founda? tion problems that the government could have encountered if the limita? tions of the model were not disclosed up front. The lesson is that, if you decide at the outset the purpose for which the model is to be introduced and do not offer it for more than it is

really worth, you may be able to over? come objections based on minor

imperfections. No matter what you decide about

the purpose of the model, your work on the foundation for its admissibil

ity should begin early on, when the

original objects, geography, or struc? tures on which the model is based still exist and before there are changes in the conditions that you want to cap? ture. If you want to use a model of

buildings or machinery at a particular stage of construction, be sure to docu?

ment the condition of the object at that stage with a full set of photographs taken from all angles.

Before embarking on the potentially costly process of having a model con?

structed, it is wise to consider several

preliminary matters, including whether your case will benefit from the use of a model. First, determine whether a model will really aid the court or the jury in understanding the case. Also, think about whether a model could be more helpful to your opponent than to you.

Defendants may be more likely than

plaintiffs to use models because models are often expensive to make, and plaintiffs frequently lack the money to pay for them. If the plain? tiff has a technically complex theory, though, using the defendant's model

may prove to be the best way for the

plaintiff to demonstrate the defen? dant's liability. Defendants' lawyers should remember that their own

weapons can fall into enemy hands and be turned against them.

In constructing a model, keep in mind the practicalities of the court? room. If the model is to be used for scale purposes, a metal tape measure, yardstick, or ruler should be modified by repainting and scaling it so that measurements may be taken directly from the model without the necessity of translating inches or centimeters into feet. This technique is especially useful if the model is one depicting a

large geographic area or large structure

(like a highway, a bridge, or an indus? trial machine).

Assemble a foundation package including copies of all charts, dia? grams, photographs, maps, and other documents used in the model's con?

struction, as well as stipulations, admissions made pursuant to requests to admit, and interrogatory answers

acknowledging the admissibility, authenticity, or accuracy of the model or the supporting graphics. If

appropriate, have photographs taken

during the model's construction to document how it was built.

To complete the trial and appellate record, offer 8 Vi -x-11-inch photo? graphs of the model into evidence. This will permit easier reference to the model in briefs.

Finally, if you get a stipulation or a

ruling before trial that the model is

admissible, consider using it during your opening statement. For example, in an automobile product-liability case

involving a gas tank explosion, you might use models of the accident site

as well as the automobile gas tank in question.

You could use the model when you tell the jury about the various witnesses and what they will testify to. Then, when each witness testifies, his refer? ence to the model would provide con?

tinuity with your opening statement, as well as with the testimony of other witnesses.

Correction: In 11 Litigation, No. 4 at 39 (Summer 1985), a

portion of the Fousekis Brelsford article, "Removal',' was

inadvertently printed out of order. We apologize for the error.

Expert Witness

(Continued from page 24) the expert to testify without prior dis? closure of the facts underlying the

opinion. The hypothetical question is no longer necessary, not even when the expert bases his opinion on facts be?

yond his personal knowledge. Under the Federal Rules, a trial law?

yer could elicit an expert's opinion with

just three questions: What are your qualifications? Do you have an opinion on issue x? What is that opinion? This examination would suffice for

admissibility, but of course no trial

lawyer interested in jury persuasion would cut his direct examination this short. A full exploration of the basis for the opinion is the usual courtroom

practice. What then is the practical value of

Rule 705? It allows the advocate to streamline the expert testimony and to order his examination as he wishes.

Prior disclosure of the basis puts the

opinion itself in the middle of the direct examination. Now the lawyer can get right to the point. Once quali? fied, the expert may state his opinion out front? when the jury is still wide awake. The explanation and basis may follow. Moreover, the hypothetical ques?

tion, when used, can be simple and

straightforward. There will be no quib? bles over its content. The advocate no

longer need fear the once standard

objection that facts included in the

hypothetical question were insufficient to justify the opinion.

Under modern evidence codes and decisions, there is an unmistakable

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