Gillian Drake
Inside Employee Rights Litigation
February, 1998 (Vol. II:4) pp.7-8.
The Art of Visual Presentation

Most lawyers make a basic mistake when utilizing demonstrative evidence for trial. While they carefully prepare their charts, photographs etc. to be clear and vivid, they don't spend the time to prepare themselves and their witnesses to use the visual aides in the courtroom to persuade the judge or jury from a performance perspective. As a result, the time, energy and expense of creating compelling demonstrative evidence is wasted when the lawyer or witness fails to bring it alive for the jury.

In the theater the goal of the actor is to make the stage, set, and all the props "his own." The audience must perceive that the actor is the character and the character is in his own home or else the illusion is broken and the audience never enters into the spirit of the play. The same is true for the lawyer (or witness) and her graphic evidence: She must handle it as if she created it herself, understand it in a way that is special, and explain it with the enthusiasm of an inventor introducing a new idea. It not, the jury will not be pulled into the lawyer's vision of the case, will not see the chart as a part of a story, and will only understand it as a sterile illustration of some facts.

Demonstrative evidence is facts made real, facts that have dimension and function: e.g. to show, to make clear, to demonstrate. By definition, demonstrative evidence is active not passive. Charts, graphs, and evidence are not simply a part of a story, they tell a story in and of themselves. They can be exciting, memorable, mini-stories that rivet the attention of the jurors.

I think I know why demonstrative evidence has little courtroom impact and how to guard against it. Typically lawyers get "too close" to a case by the time of trial and forget that what is second-hand to them is brand-new to the jury. A chart whose point is obvious to the lawyer may be lost on jurors. I have developed a simple, six-point approach to make sure that lawyers who use demonstrative evidence get some real bang for their bucks.

1. The chart is your best friend. Every piece of demonstrative evidence must be handled physically like it's your ten-year-old briefcase. You must pick it up easily, handle it gracefully, touch it tenderly, and admire it. You must be facile with its symbols, meaning and layout. You must plan where it will be, practice getting it out and putting it up and pointing out its parts. It's as if you are showing your used (and beloved) car to a prospective buyer. If you are comfortable with it, not only will the chart not intrude into your story telling but could become an indelible part of the story which the jury remembers.

2. Introduce the chart with a bold, schematic way to your jury before you show them how it works. Make the chart your jury's best friend. After the initial set-up, the demonstrative evidence must be introduced in a bold manner. The witness should be asked the question "What does this chart show us?" and the answer should be (ideally) a single-sentence answer that summarizes why it helps prove or disprove your claim, i.e., why the chart matters. In a recent rape case, a federal prosecutor developed a chart to show that the defendant had been near the rape scene before the rape at issue. A map was blown up and large dots placed upon it showing the defendant's earlier travels to places near the rape scene such as his sister's house, a local health club etc. When the investigating officer was asked about the chart, he responded, "This chart shows that the defendant had been several times to areas close to the rape scene and that he was familiar with the general surroundings." And then he went into the details of how it demonstrates that claim.

3. Make the chart the jurors' best friend. Get the witness who will be using the chart or evidence physically close to the jury. Exhibits represent an opportunity to bring the witness off the stand and down in front of the jury. Take advantage of this. This is your witness's chance to transport the jury to the scene of the accident or crime or whatever. By getting physically close to the jury, a witness can create a storyteller's intimacy that is crucial to this process. In a case we prepared last year, our medical defendant was called adversely to the stand and asked what the (supposedly) offending surgical instrument was. Our witness asked if he might explain its use, picked up the instrument, walked over to the jury and intimately taught them details of the instrument and his surgical procedure for 30 minutes. The jury was totally won over - Defense verdict.

4. Explain the details; don't rush. Jurors absorb information at different speeds and you risk offending the slower ones if you rush through the process of explaining the exhibit's details. The key here is enthusiasm and engaging detail. You must see and feel each detail in a different way. A list of points cannot be delivered equally, but each one must generate a specific image in your head if the jurors are to understand the difference, the particulars, and the overall point. Being enthusiastic about what the chart means goes a long way in keeping the jury's interest keenly involved.

5. Reuse your exhibits. Jurors anchor information through what they see. That's why it's critical for lawyers to use in closing arguments the two or three exhibits that made the strongest impression on the jurors. Using the exhibits on closing triggers the jurors' memories to that moment in the "story" which was brought to life by the chart. Repeat that one sentence summary the witness used to introduce the chart in order to refocus the jurors' perception and memory of the event.

6. Practice. Practice. Practice. That's what actors do. They don't just go over their lines. They "physicalize" their parts over and over in rehearsal. By "physicalizing" the actor melds style and substance, action and language, story and emotion together. That's how good actors make their portrayals vivid, memorable and moving for the audience. The same can be true for lawyers preparing a case. Through simple acting techniques and rehearsal, good litigators can make a complex or uninteresting case a fascinating, simple event for their fact-finding audience.