DEMONSTRATIVE EVIDENCE AT TRIAL
By: Paul R. Kiesel, Esq.

Seeing is believing. A picture is worth a thousand words. Jurors remember 80% of what they see and 20% of what they hear. OK. OK. You've heard it all before, but what do you do about it? I mean you're just now getting comfortable with using a chalk board, how can you transition to "high-tech stuff?" In a word, GET OVER IT! Jurors not only want to see a quality presentation from the plaintiffs, they expect it. In fact, I am of the opinion that we have a significant advantage over the defense with respect to the method we use in presenting evidence to the jury. The defense must always be concerned that there is the David and Goliath syndrome. If the defendants enter the court room armed with video monitors, computer terminals, "Smart-Boards" etc., they run the risk of being seen as the big bad wolf and the plaintiff just a defenseless sheep. That said, let's talk about what you can do, how relatively inexpensive it can be, and the different options available. The best way to evaluate how to use presentation materials in your specific case is to give you some indication of how our firm has presented materials to jurors. We've done it simply, cheaply and for the most part, successfully. I will however discuss a few things that worked and a few, which in my view, did not.

A child wanders a way from her apartment building and walks approximately 50 yards to the front door of a neighboring apartment building. The double entry-doors to the adjacent apartment building were left open and were not self-closing, self-latching doors. In the center of the adjacent apartment building was a center, courtyard pool, like the pool in Melrose Place. (If you're asking what is Melrose Place, you're dating yourself). The child was being watched by her babysitter who apparently had "lost" the child earlier in the day, requiring a neighbor to collect the wandering child and return her to the babysitter. Several hours later the child once again wandered away but, unfortunately, this time to the adjoining apartment building. The child entered the complex through the open doors and found her way into the swimming pool. By the time the babysitter realized the child had walked away, several minutes had passed. The child could not swim and was found approximately 10 minutes after she had wandered away, unconscious at the bottom of the swimming pool. The child died shortly thereafter.

With these operative facts, we brought an action against the owners of the adjacent apartment building for failing to maintain doors, which according to the local building code, were required to be "self-closing/self-latching" doors. Our biggest concern was the perception we felt the jury would have that the child had walked some great distance and, therefore, the babysitter was the only one to be held accountable for this tragedy. We wanted to have some way to "demonstrate" to the jury how close the two buildings were and the distance so "slight" that the buildings were really very close. The first idea was to have an artist draw a to-scale picture of the two buildings for the jury to see their proximity, as well as an overhead view to show the pool in the center of the defendant's property. The problem was the drawing was going to be expensive and not "true-to-life." Considering our options we decided for a more creative approach. Here's what we did and here's how simple it was.

To show the jury, in real terms, how close the properties were we decided to rent a helicopter to fly over the buildings and take pictures of the two properties. The cost of the helicopter was just $150.00. We used several rolls of film taking pictures while flying over the apartments. Next we had the pictures loaded on to a CD which was done by a local film processing company at a cost of $25.00. So, at this point we'd spent a little over $200 and had actual pictures of the apartment complexes loaded on to a CD for use in the courtroom. At this time in 1993 there were not the dozens of companies available to help with trial presentation, so we had to do a great deal of improvising. First we brought to court a 26-inch television set for the jury, a computer monitor for counsels' table and a monitor for the witness and the judge. By using this technology we were able to bring up on the computer screen the image of the apartment buildings so the jury could actually see how close the buildings were to each other and how easy it would be for the child to wander next door. We also had photographs of the front doors and we were able to enhance and blow up the images of the doors for the jury so they could see the doors in full-frame even though the pictures were taken some distance away. The entire cost of this set up, including the helicopter photographs, Kodak CD, television (we borrowed one of our personal sets), and set-up costs was under $500.00. The impact was, as predicted, very effective. The "poor" defense attorney (an extremely good advocate), comfortable with chalk and black board, was reduced to commenting on his poor technical skills and his "being from another generation," which was in stark contrast to our computer-imaged presentation.

Today, the availability and acceptability of "computers" in the courtroom are widespread. We don't go to trial anymore without the laptop computer and, where possible, real-time with the court reporter. (See me on a little secret I'd prefer not to mention here). So many companies offer technical services for the trial attorney that the question is simply which one of the many options should you utilize. Below I will discuss some of the available options and discuss which in our experience work and which don't. First, I will discuss the one that did not work. Again, this is simply from our experience, but instructive nevertheless. A trial we had some years ago involved a plaintiff who was from Michigan and suffered a closed-head injury while on vacation here in Southern California. The plaintiff spent two weeks at UCI and returned to Michigan for all of his follow-up care. The plaintiff had a dozen doctors, all in Michigan, and all very familiar with his medical condition. Rather than designate experts in California who were not his treating doctors, we flew back to Michigan and took the video-tape depositions of our experts. There were six of them. After editing down the tapes, consistent with California Code of Civil Procedure Section 2025, we played these tapes for the jury. Unfortunately we discovered the jury was "bored-to-tears" with these video-tapes and took in very little of the details. We tried to spice up these tapes by having the video-taped doctors use illustrations during their testimony. But, truth be told, these were "talking heads" that could be used to put insomniacs to sleep and not the best way to present critical evidence to the jury. We've never made this mistake again.

The assets available for trial presentation include the following:

* Animated reconstruction of motor-vehicle collisions. (This can be done at relatively small expense with great impact)
* The Elmo. (Good chance a vendor of Elmo's will be here in Las Vegas for you to see a demonstration...I've invited one such provider to my oral presentation so you'll have a chance to see the system in action.) The Elmo is essentially a camera mounted on a sliding vertical track that allows you to place any sort of document on the bed of the machine and project the image to the jury. The advantage to the Elmo is its adaptability and flexibility. Any document which is helpful can be simply placed on the Elmo and projected to the jury. The documents include photographs, X-rays, etc. You can draw on the document and the jury can see these illustrations on their monitor as you do it. The Elmo is relatively "inexpensive" or can be rented for approximately $250 per day. In conjunction with the Elmo you'll need monitors for the jury, counsel and the witness. (I strongly recommend you retain a company to assist you with the set- up and maintenance of the audio-visual equipment, rather than attempt to do it yourself.>/LI>
* CD technology which stores documents, photographs and even video-tape. CD's can have lots of information stored on them. In a case we are currently working on which is fairly document intensive we have loaded all four thousand pages of documents, 124 photographs and 1 news-reel footage on to just one CD. A CD can hold up to 680 megs of data. The above materials only take up 283 megs. Each document has a bar code assigned to it by the computer. The bar codes take just seconds to set up. Once the documents have been bar coded you can choose any one of the four thousand pages from the CD to display in court just by pointing your bar code reader ( a small device which you hold and point at the bar code) to pull that exhibit up for the jury. The beauty of this system is the ease with which you can display an exhibit. You don't need to move paper on and off the Elmo. You don't have to search for the document you want to display on the Elmo to the jury, but you simply select the document's bar code, pass the wand over it and instantly the image is up on the monitors for the jury to see. The same is true of photographs. Additionally, there are now software packages available which allow you to highlight, blow-up and do other neat things with these exhibits, in real time for the jury which, in my view, significantly enhances the impact of both your presentation and the jury's understanding and appreciation of your case.
* Trial boards. These are simple, effective and user-friendly. We either use our own "blow-up machine" or hire a company to make poster boards for use in trial. Here the expression, "a picture is worth a thousand words" is very true. The disadvantage to the "boards" is their lack of flexibility and reluctance to mark-up the board during trial. The advantage with the board, and these are SIGNIFICANT is the ability to use a board to tell a story. The boards can be used, as we have done so in the past, to set-up time lines for the jury to follow, or to contrast documents against each other on a single board. There are several companies who are Consumer Attorneys Association of Los Angeles vendor members whom you should consider when having boards made for trial.
* Smart-Boards. Here's where we get really high-tech. A smart board is a large blackboard-type design (although the board is white), on wheels, which is connected to a computer. The image on the computer screen also displays on the Smart-Board screen. The Smart-Board allows you to walk up to the board and do such things as draw a circle around a word, highlight a sentence, blow-up a picture, all just by touching the board with our fingers right in front of the jury. The board even comes with an eraser that allows you to remove a mark once made. As you draw on the Smart-Board, the information is communicated to your computer and an image is saved on your computer to be printed out and admitted into evidence for the jury. The Smart-Board system isn't cheap, but it sure is effective. If you've got the right case, you should use this system in your trial.

Necessity it is said is the mother of invention. If you can conceive it you can do it. Experiment, but remember, when the time comes to present the information to the jury don't be so hung up on the technology that you lose site of your objective.
Good luck.