24 Mistakes That Make For a DeMONSTERative Evidence Nightmare
by Ken Lopez
Founder & CEO
Happy Halloween. This article will help you avoid some common mistakes of demonstrative evidence so that you do not put the "monster" in "demonstrative."
Demonstrative evidence is a general term for evidence introduced in litigation that is neither spoken testimony nor “real” evidence like an actual murder weapon. Demonstrative evidence is introduced in order to make evidence and facts in a case easier for the judge or jury to understand.
Examples of demonstrative evidence include charts, timelines, scale models, photo enlargements, animations, films, videos, checklist exhibits, and Powerpoint presentations.
Here are some common mistakes to avoid.
- Waiting until it is too late. From the very beginning, plan your case with an eye toward its presentation to a jury. See our article on using a dual-track strategy in trial preparation.
- Cheating on your charts. There are many ways to lie using charts, including axis changes, using logarithmic scales, cherry picking data, and much more. These “black-hat” techniques are not only inappropriate but if you get caught, they are likely to draw sanctions or worse.
- Glossing over details in an animation and not getting it admitted. Remember – everything must pass muster under the relevant rules of evidence. Here is an article discussing how to get courtroom animation admitted in 6 easy steps.
- Using legends and keys. I first learned this simple notion from Edward Tufte, and it is surprisingly powerful. Most of the time, you can avoid using a legend or key on a chart. There is rarely a good reason to use them when simple labeling can replace a legend or key. Tufte correctly calls such elements "chartjunk."
- Using garish colors or culturally inappropriate colors. Remember, in this decade, jurors are looking for a high-quality presentation. Also, remember that not every juror has been raised in a country that associates red with stop or green with go. Here is an article on trial graphics, color and culture.
- Failing to tell a story. In a complex case, jurors will tend to simplify and “do what is right.” They will remember a believable story, but you must remember to tell one - just as we discussed in the Apple v. Samsung case.
- Forgetting to mix your media. Printed and mounted foam core trial boards still have a place in a high-tech world as do scale models for litigation.
- Failing to work with expert witnesses to prepare demonstrative evidence. A well-prepared expert witness is invaluable; one who is not well prepared can be a disaster. As much as an expert firm will insist they can prepare demonstratives, it is always best to have expert witnesses work with litigation graphics experts.
- Asking your law firm associate to make charts. A professional trial graphics consultant will add graphic design skill and a degree of litigation experience that most attorneys won’t normally have. It is not a good idea to have your associates and paralegals prepare demonstratives, and this article explains why.
- Failing to consider many options. The best demonstrative evidence product results from a whittling-down process. Therefore, it is normally best to overproduce the number of graphics early in a project.
- Failing to use demonstrative evidence where you could. Hint: demonstrative exhibits are not just for jury trials.
- Failing to consider the latest scientific research on presentations. There is a method to making a good presentation, and there are common and well-known traps to avoid.
- Forgetting that Hollywood is a great place to learn how to tell a courtroom story and that juries are accustomed to the way Hollywood tells stories.
- Making the mistake of believing you can't afford to hire a trial presentation company. Here are some tips for how you can save money on trial preparation.
- Failing to use demonstrative evidence at all. Few need reminding why graphics are essential in bench or jury trials, but here is the science behind it.
- Failing to prepare opening statement graphics thoughtfully. An opening statement is often the most important part of your presentation, and here are some tips for preparing openings effectively.
- Using bullet points in your demonstrative evidence. Evidence shows that jurors are turned off by the use of bullet points, and bullet points are actually harmful to your presentation.
- Trying to get group consensus on your demonstrative evidence. Often, a piece of evidence designed by a committee loses its beauty and coherence. Our article on group-design of litigation graphics explains this best.
- Using demonstrative evidence only sporadically. A “graphically immersive” presentation usually works best.
- Failing to bring in a qualified operator to handle your trial presentation software. You do not get a second chance in litigation, and technology should be low on your list of worries. A qualified trial technician will run the courtroom hotseat and leave you free to focus on the case.
- Not testing graphics in a mock trial format. Testing litigation graphics in front of a mock jury can find all sorts of problems and issues with your graphics before you need to use them at trial.
- Hiring the wrong trial graphics consultants. I sometimes see trial teams leading clients astray. The most effective hiring process involves relying on references and prior experience. The worst process is handing the decision off to an inexperienced client and forcing them to essentially make a decision on price. Why hire the best lawyers and subpar graphics or technology consultants? Nightmares do happen. Here is a summary of the best hiring process for litigation graphics consultants based on 17 years of being hired by the best in the business.
- Creating boring graphics. A good trial consultant can make any subject interesting to a jury. Here is an article describing five ways litigation consultants add pizazz to a case.
- Fearing technology. It is a myth that jurors are turned off by technology that is “too slick.” Here is what one Arkansas jury had to say about technology.
Forgetting to heed these warnings will surely lead you into a foggy graveyard at night filled with de-monster-ative evidence spirits. Prepare your litigation graphics well, and have a happy and safe Halloween everyone.
Thoughts and prayers to our colleagues, clients and friends in the northeast.
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
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