Trial Magazine

Video of your client playing the piano at a high school talent show before dying in a bus crash. Photos of another client with loved ones during the ­holidays before suffering bilateral leg amputations due to medical negligence. Jurors trust pre-incident photos and videos because they were not taken in preparation for a lawsuit—there was no motivation to prove a case by capturing the image. This type of visual evidence can make or break your damages case.

Don’t rely on your clients to find images—they are ­overwhelmed in the aftermath of an injury. Instead, ask their family members and friends, or request access to their social media accounts. Then pare down the photos and videos you collect. Consider how you can use this evidence to paint a picture of your client before the injury. Examples include: athlete, loving family member, hard worker, gardener, student, community helper, animal lover, and artist.

Using PowerPoint or another presentation software, crop the photos so they fill the slide as much as possible. Zoom in on the plaintiff and remove distractions, leaving only as much context as needed. Don’t use templates or labels because they distract from the testimony that’s happening in real time. If possible, put the exhibit number in a corner to help with quick identification on the record.

Once you have those images ready to present, here are three ways you can incorporate them in witness testimony.

Physician. After the medical provider has explained the nature of your client’s injury and causation, introduce the topics of permanency and disability. The pre-incident photos can illustrate these concepts. For example, in a case involving a defective hip replacement, show a photo of the plaintiff ­squatting on the ground while embracing a puppy. Ask: “Can Ms. A do this body posture now?” When the doctor says “no,” follow up with: “Can you please explain why not?” The doctor can then explain the physiological reasons.

Physiatrists are particularly good at explaining how ­injuries impact body movement. They can describe the range of motion seen in the photo compared to the ­plaintiff’s current level of disability. Use this method of examination with the treating doctor, a plaintiff-retained medical examiner, or even the defense medical examiner.

Lay witness. Testimony from friends or family members can sound rehearsed, especially if you ask something like: “Please describe what Mr. B could do before the incident that he can’t do anymore.” This does not engage jurors’ emotions. Instead, show a photo of the plaintiff doing something athletic, such as playing basketball. Say to the parent: “Tell us about your daughter’s love of this sport.” Then show more pictures, and ask for details, such as what position she played and a story about a memorable game.

Plaintiff. When the plaintiff explains photos, jurors may view it as self-serving. A better option is to identify the best pre-incident photo you can find—a happy, ­full-of-life, radiant photo—that shows your client doing something he or she loves. Don’t rehearse this question with the plaintiff in advance, and near the end of the plaintiff’s testimony, show that image. It will transport your clients back in time to before the incident, when they were still whole—a student throwing out her arms in joy as she prepares to get onto a bus; a young man doing cartwheels on a grassy lawn. Then gently ask: “Can you share with us how you feel when you look at this photo?”

Closing. During closing, don’t show all of the ­pre-incident photos again: Pick the few that best resonated with the jury. For the final slide on damages, place the best ­pre-incident photo of your client on half of the slide, rather than showing the most devastating photo of your client’s ­injuries. On the other half of the slide, list the elements of damages discussed in the damages jury instruction (such as permanent disability, pain, emotional distress), and use this slide as you explain the jurors’ job in assessing damages.

When pre-incident photos are woven through the fabric of a case, they help tell a story, strengthening the jurors’ ability to relate, to feel, and to understand.

Karen Koehler is an attorney at Stritmatter Kessler Koehler Moore in Seattle. She can be reached at karenk@stritmatter.com.