November 2017 - Kristine Meredith
As trial lawyers, we spend a lot of time researching complicated topics, finding experts to further educate us about those topics, and breaking down those topics to explain them in a meaningful way to jurors. Developing compelling demonstratives is essential.
Leave a research trail. Save your online research when you initially review a case. Months later, it will remind you of the steps you took to fully understand the topic and can be used as the foundation for your demonstratives at trial. For example, when I worked on a stroke case, I watched videos on YouTube and reviewed schematics I found online to learn about blood clots and the proteins that break them down. Later, I revisited that material to review with my experts and include with their disclosures.
Consult your experts. Your experts can help you communicate complex concepts in an uncomplicated way. Ask them to consider analogies or examples that may make the concept more relatable for the fact-finder. In a recent case, for example, we had to explain the comparative rates of processor speeds for computer chips. To do so, we developed graphics using a basic factory production line.
Consider different mediums. Consult with vendors to determine the best presentation method: foam storyboards, PowerPoint slides, or animations. Involve your experts in the process—it will be helpful when it’s time to authenticate the demonstratives. Even if you do not introduce the demonstrative as substantive evidence, you’ll have to show that its contents are reliable.
Consider multiple versions. When defense counsel objects to demonstratives being used during opening, the judge may require an offer of proof as to the basis for use of the specific demonstrative and the authority for the use of materials not yet admitted into evidence. It is unlikely that a demonstrative created under an expert’s supervision, such as a medical illustration, will be permitted during opening. Simplify the demonstrative down to its core building blocks. An expert could, for example, modify graphics illustrating the blood-clotting process to show instead a specific protein’s role and how a change to that protein may lead to increased clotting. This may allow you to use it in your opening, and it will look familiar to the jurors when the expert testifies later.
If you think about demonstratives early and often, you’ll be able to better engage jurors with the facts of your case.
Kristine K. Meredith is a partner at Danko Meredith in Redwood Shores, Calif. She can be reached at firstname.lastname@example.org.