Trial Exhibits Persuade Juries
One area of preparation that a good trial attorney never ignores is the creation of exhibits and other demonstrative evidence for the jury to view during trial. These items can frequently be shown and utilized several times - during opening statement, direct or cross-examination, and closing. If admitted into evidence, the exhibits will accompany the jurors into the jury room for deliberations.
The importance of a good trial exhibit comes from the way people process information presented to them and not merely from the number of times a jury will view it. It is well-documented that people retain a small percentage of what they hear only or see only, but an astonishing 80% of what they see and hear together. The attorney who relies on his eloquence alone to convey his point to the jury is understating his case. A juror’s retention of the message can be dramatically increased if a clear demonstrative exhibit reinforces that eloquence. The longer and more complex the trial, the more critical the need and the more significant the effect of good demonstrative exhibits.
Demonstrative exhibits come in all shapes, sizes, media and formats. Demonstrative evidence in a product liability case almost always starts with the product itself and accompanying warnings and literature. There is no substitute for having the product itself in the courtroom. When the product is a small engine, lawn mower, power tool or non-prescription pharmaceutical, courtroom production is a little easier. With larger industrial machinery, prescription or otherwise regulated pharmaceuticals and medical devices, the use of photographs, sketches, overhead or computerized projections or the like can be presented in a size large enough for all to see from the jury box or the bench.
There is no limit to the type of information that can be formed into a large exhibit. A crucial document or key prior testimony may need to be enlarged for the jury’s benefit. Confusing, seemingly disjointed or dry data may need to be collected, analyzed, organized and presented in chart or other form so that it can be understood and retained by the jury. In cases involving an injury, a complex fracture, operation or procedure can all be illustrated through demonstrative exhibits, as can a time line of critical events.
In a recent defense case we created an exhibit which reproduced the product label and usage advisory on top and a passage from the deposition of a plaintiff’s witness at the bottom. The exhibit showed in clear fashion how the witness did not follow the directions and warnings on the label. The power of the exhibit was unmistakable. The plaintiff reduced his demand by hundreds of thousands of dollars right after we showed this exhibit during our opening statement. Plaintiff's two key witnesses reacted visibly and audibly to the exhibit in front of the jury.
Despite the long-recognized power of trial exhibits, many attorneys still do not use, or underutilize, them. Time and money are factors. Some attorneys make the mistake of not planning for and creating exhibits early enough. Faced with the need to prepare for a looming trial, and especially when faced with the significant turnaround time and increased "rush" basis charge much professionally rendered evidence entails, trial exhibits frequently are the first things to be cut from the "must do" list. Other attorneys just think the cost of the exhibit in time and money, particularly when they are hoping the case will settle, makes an adequate return on the investment dubious.
The failure to use demonstrative exhibits has likely become riskier than ever in this day and age. Generation X members - today's 20 to 40 year old population - compose more than 40% of the population. These young people whose presence is large and increasing in the potential jury pool have been raised on television and computers, not books, newspapers or oratory. They are more comfortable with and respond better to visual stimuli. Their attention spans are shorter than any generation before them. The use of a visual exhibit can help convey the party's message to these jurors far more effectively than the attorney's words alone.
Exhibits are best left uncluttered by lots of graphics or words or colors. Simplicity is the key - less is more. An attorney is well advised to take time in distilling his case and planning the exhibits to show a few key points. The exhibits themselves should be simple so as to clarify and enhance their message. Professional exhibits are not always necessary or more effective. A well-planned and succinct exhibit created on the computer and enlarged locally can persuade more effectively than a glossier, albeit less focused, professionally-produced piece.
Throughout the stages of a developing case, this firm continually considers/anticipates the use of demonstrative exhibits. The exhibits can be utilized in a smaller version early in the case, for example, during settlement negotiations or to succinctly and visually convey a point to an arbitrator (or mediator). Even if the exhibit is not to be utilized until trial, the smart attorney knows to prepare his exhibits well in advance as a way of distilling his own thoughts concerning the high points of his case.